BOWEN v. HUMPHREY et al
ORDER GRANTING 72 Motion to Produce Merkerson Medical Records; GRANTING 73 Motion to have Merkerson Medical Records Made Part of the Record. the state Defendants shall produce to the Plaintiff Merkerson's mental health records for 2010. The Plaintiff may depose the state Defendants as well as Stephen Sloan, Ph.D., the individual who completed and signed a mental health evaluation form for Merkerson that is dated March 9, 2010. The scope of these depositions will be strictly limit ed to the events occurring at Baldwin State Prison. The Plaintiff shall not inquire about policies and procedures or similar matters. The sole purpose of the depositions will be to determine whether the state Defendants had knowledge of facts that would suggest they were subjectively aware of a substantial risk of serious harm to Mr. Bowen. Although the Court will not set a time limit for the depositions, the Court would expect that each deposition would take no more than 30 minutes. Finally, barring unforeseen circumstances, the Court expects the Parties can complete this limited discovery within 60 days of this Order. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 6/6/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WALKER D. BOWEN, as the
administrator of the estate of
TERRANCE DESMOND BOWEN,
CARL HUMPHREY, DOUG
UNDERWOOD, ANTHONY BROOKINS,
CAGER EDWARD DAVIS, and BRUCE
REX SCHOOLCRAFT, D.O., in their
CIVIL ACTION NO. 5:13-CV-256 (MTT)
Terrance Bowen was beaten to death by his prison cellmate. This lawsuit,
brought by his estate under 42 U.S.C. § 1983, alleges the Defendants violated Bowen’s
Eighth Amendment rights when they placed him in a cell with Carl Merkerson, the man
who killed him. The Defendants are Carl Humphrey, warden of Baldwin State Prison;
Doug Underwood, deputy warden of security at the prison; Anthony Brookins, lieutenant
in charge of the unit in which Bowen and Merkerson lived; Cager Edward Davis,
correction officer at the prison who supervised inmates in the unit where Bowen and
Merkerson lived; and Bruce Rex Schoolcraft, D.O., a psychiatrist who treated inmates’
mental illnesses. (Doc. 50, ¶¶ 3-8). All Defendants except Schoolcraft are referred to in
this Order as the “state Defendants.”1
Humphrey, Underwood, Brookins, and Davis are state employees. Schoolcraft is not.
A prison official violates the Eighth Amendment “when a substantial risk of
serious harm, of which the official is subjectively aware, exists and the official does not
respond reasonably to the risk.” Caldwell v. Warden, FCI Talladega, --- F.3d ---, 2014
WL 1346975, at *7 (quoting Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.2003))
(quotation marks omitted); Farmer v. Brennan, 511 U.S. 825, 834 (1994). The state
Defendants have moved to dismiss the Plaintiff’s claims because they contend he has
not alleged their subjective knowledge of the risk of harm Merkerson posed to Bowen.
The state Defendants’ subjective knowledge is in fact a close call. Accepting the
Plaintiff’s allegations as true, Merkerson’s prior murder conviction, his mental health
status and history of schizophrenia, his prior assault on a cellmate, his
“decompensating” mental condition,2 and the state Defendants’ disregard of their policy
against double-celling mental health inmates with prior assaults all point toward their
liability.3 However, as the Court observed during the June 3, 2014 hearing on the
Defendants’ motions to dismiss, there likely is still a missing link in the chain of facts
necessary to support the Plaintiff’s allegations that the state Defendants actually knew
Merkerson was dangerous. In cases like this one, plaintiffs bridge this gap and survive
motions to dismiss when they allege not just the general dangerousness of the
assaulting inmate but also some additional event or information that was brought
directly to the attention of the defendants prior to the assault. See, e.g., Caldwell, 2014
The Plaintiff alleges that a few days prior to the assault, Merkerson’s mother notified a mental
health counselor at the prison that her son’s mental condition was deteriorating and that when
that happens he becomes violent and dangerous.
Of course, the fact that the state Defendants violated their policy does not establish their
liability. But their breach is relevant to their knowledge that Merkerson should not have been
housed with Bowen.
WL 1346975, at *8-9 (after inmate lit plaintiff’s personal property on fire, plaintiff told the
defendants he feared for his safety if placed back in a cell with that inmate); McCreary
v. Parker, 456 F. App’x 790, 792 (11th Cir. 2012) (before attacking the victim, a young
black male, inmate specifically told defendants that he would attack any young black
men they placed in his cell); Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003)
(defendant officers were on duty when the assaulting inmate suffered a schizophrenic
breakdown before killing the victim).
In this case, the Plaintiff’s access to this final link of evidence has been
hampered by the fact that Bowen is deceased. Therefore, he is unable to provide any
information about the circumstances leading up to Bowen’s death or the time in which
he was housed with Merkerson. Given the practical challenges confronting the Plaintiff
in this regard, and given the otherwise sufficient allegations of deliberate indifference
that have been made, before the Court rules on the state Defendants’ motion it will
allow the Plaintiff to conduct limited discovery to determine whether he can allege the
Defendants actually knew about the danger Merkerson posed to Bowen. The Court
recognizes the general policy reasons for shielding public officials from extensive
discovery, particularly those who assert qualified immunity defenses. See Harlow v.
Fitzgerald, 457 U.S. 800, 814, 817-18 (1982). But, as the state Defendants have
acknowledged, the Court has the discretion to allow some discovery. Moreover, the
unique circumstances of this case make limited discovery necessary for equitable
reasons and to enable the Court to accurately assess the application of qualified
Accordingly, the state Defendants shall produce to the Plaintiff Merkerson’s
mental health records for 2010.5 The Plaintiff may depose the state Defendants as well
as Stephen Sloan, Ph.D., the individual who completed and signed a mental health
evaluation form for Merkerson that is dated March 9, 2010.6 The scope of these
depositions will be strictly limited to the events occurring at Baldwin State Prison. The
Plaintiff shall not inquire about policies and procedures or similar matters. The sole
purpose of the depositions will be to determine whether the state Defendants had
knowledge of facts that would suggest they were subjectively aware of a substantial risk
of serious harm to Mr. Bowen. Although the Court will not set a time limit for the
depositions, the Court would expect that each deposition would take no more than 30
minutes. Finally, barring unforeseen circumstances, the Court expects the Parties can
complete this limited discovery within 60 days of this Order.
This Order does not deny qualified immunity to the state Defendants. Rather, it provides for
limited discovery to determine, among other things, whether the state Defendants are entitled to
qualified immunity. For in this Circuit, it is clearly established “that a prison guard violates a
prisoner's Eighth Amendment right when that guard actually (objectively and subjectively)
knows that one prisoner poses a substantial risk of serious harm to another, yet fails to take any
action to investigate, mitigate, or monitor that substantial risk of serious harm.” Caldwell, 2014
WL 1346975, at *10 (citing Cottone, 326 F.3d at 1358–60; Hale v. Tallapoosa Cnty., 50 F.3d
1579, 1582-84 (11th Cir.1995); LaMarca v. Turner, 995 F.2d 1526, 1536–38 (11th Cir.1993)).
To this extent, the Plaintiff’s post-hearing motions to produce Merkerson’s medical records
(Doc. 72; Doc. 73) are GRANTED. However, these records may only be used for depositions
as outlined in this Order and may not be disclosed to anyone else.
The document is Bates stamped 0255 in the files produced to the Court.
SO ORDERED, this 6th day of June, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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