VanOrden v. Bannock County et al

Filing 74

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Docket No. 52) - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (Docket No. 52 ) is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JASON VANORDEN,
Plaintiff,

Case No.: 4:14-cv-00303-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
BANNOCK COUNTY, SHERIFF’S
DEPARTMENT, CITY OF POCATELLO,
SHERIFF LOREN NIELSEN, CAPTAIN KEVIN
FONNESBECK, CAPTAIN ELLE PETERSON,
DEPUTY SHANNON BLOXHAM, DEPUTY
IFEREIMI TABAKECE, DEPUTY SHELTON,
DEPUTY JARROD PHILLIPS, DEPUTY HOFF,
DETECTIVE ALEX HAMILTON, DEPUTY
KATHLEEN BALLARD, SCOTT MARCHAND,
SERGEANT ERICK ANDERSON, OFFICER
MATT SHUTES, SERGEANT BILL COLLINS,
OFFICER TRAVIS EVANS, OFFICER DARREN
DANIELS, AND JOHN DOES 1-20,

DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(Docket No. 52)

Defendants.

Now pending before the Court is Defendants’1 Motion for Summary Judgment (Docket
No. 52). Having carefully considered the record, participated in oral argument, and otherwise
being fully advised, the Court enters the following Memorandum Decision and Order:

1

Moving Defendants include Bannock County, Sheriff’s Department, Sheriff Loren
Nielsen, Captain Kevin Fonnesbeck, Captain Ellie Peterson, Deputy Shannon Bloxham, Deputy
Ifereimi Tabakece, Deputy Shelton, Deputy Jarrod Phillips, Deputy Hoff, Detective Alex
Amilton, and Deputy Kathleen Ballard. See MSJ (Docket No. 52). These Defendants refer to
themselves collectively as the “Bannock County Defendants” in their briefing. See Mem. in
Supp. of MSJ, p. 2 (Docket No. 52, Att. 1).
MEMORANDUM DECISION AND ORDER - 1

I. BACKGROUND
This case follows an August 15, 2013 stand-off between Jason Van Orden and officers
from the City of Pocatello Police Department, followed by his arrest and transport to Portneuf
Medical Center before being booked in the Bannock County Jail. Two weeks later, on August
29, 2013, deputies at the Bannock County Jail found Mr. Van Orden dead in his cell – he had
apparently taken his own life by hanging himself with bed linens. At the time of his death, Mr.
Van Orden was not on suicide watch.
Plaintiff’s Amended Civil Rights Complaint raises claims against two different sets of
defendants, identified and grouped according to their otherwise separate interaction with Mr.
Van Orden at two different points in time. The first group – the City of Pocatello Defendants –
was sued in relation to Mr. Van Orden’s August 15, 2013 arrest (Plaintiff’s Section 1983
excessive force claim). The second group – the Bannock County Defendants – was sued in
relation to Mr. Van Orden’s August 29, 2013 death in the Bannock County Jail (Plaintiff’s
Section 1983 failure to protect claim).2 This Court has already dismissed Plaintiff’s claims
against the City of Pocatello Defendants. See 3/27/16 MDO (Docket No. 67).
As to the remaining Bannock County Defendants, Plaintiff generally alleges:
Because Defendants knew or should have known that Plaintiff was emotionally and
mentally unstable and suicidal, Defendants owed a duty to Plaintiff to provide

2

These two claims are included within Count 1 of Plaintiff’s Amended Civil Rights
Complaint. See Am. Compl., ¶¶ 15-20 (Docket No. 4). At Count 2 of Plaintiff’s Amended Civil
Rights Complaint, Plaintiff also asserts a gross negligence claim. See id. at ¶¶ 21-26. However,
at oral argument on the City of Pocatello Defendants’ Motion for Summary Judgment, Plaintiff’s
counsel confirmed that the gross negligence claim and excessive force claim are one and the
same. See 3/27/16 MDO, p. 8, n.6 (Docket No. 67). And, again, at oral argument on the
Bannock County Defendants’ Motion for Summary Judgment, Plaintiff’s counsel confirmed for
the record that no state law claims were being raised, only Section 1983 claims.
MEMORANDUM DECISION AND ORDER - 2

appropriate care to prevent Plaintiff from harming himself. Indeed, Defendants
claim they had taken precaution; however, despite these claims, Plaintiff
accomplished his suicide unchecked and without detection by Defendants.
Because Defendants’ actions at the time of the arrest and incarceration or lack of
action pursuant to the clear warnings of Plaintiff’s instability, Plaintiff was denied
his constitutional right to life without due process of law, a protection afforded him
by the Constitution of the United States.
Am. Compl., ¶¶ 13-14 (Docket No. 4).
The Bannock County Defendants now move for summary judgment, arguing (1) that
Plaintiff (whether considered to be the decedent or his parents) does not have standing to pursue
any claims against the Bannock County Defendants;3 (2) that there is no genuine issue of
material fact for trial on the failure to protect claim against the Bannock County Defendants; and
(3) that the Bannock County Defendants are entitled to qualified immunity. See generally Mem.
in Supp. of MSJ (Docket No. 52, Att. 1).4

3

This is a recurring argument and nettlesome issue for Plaintiff. See 3/27/16 MDO, p. 2,
n.3 (Docket No. 67) (“There is some confusion as to who “Plaintiff” is in this matter. For
example, this action’s caption identifies Plaintiff as, simply, Jason Van Orden. Yet, the
Amended Complaint itself begins by stating: ‘Plaintiff, JASON VANORDEN by and through
personal representatives of the estate and parents of the deceased GARTH VANORDEN AND
JULIE VANORDEN (‘Plaintiffs’), by and through the personal representatives of his estate and
undersigned counsel, hereby alleges and complains as follows.’ Ans, as to the ‘jurisdiction’
allegations, the Amended Complaint states: ‘Plaintiffs’ son, Jason Van Orden, at the time of the
incident, was a citizen of the State of Idaho [ ].’” (emphasis added in original) (internal citations
omitted). Even so, because the Court finds that Plaintiff cannot prevail on the substantive merits
of the remaining claim, this Memorandum Decision and Order need not (and therefore does not)
address the Bannock County Defendants’ standing arguments.
4

At the close of oral argument, Plaintiff’s counsel conceded that, as to certain individual
defendants within the group comprising the Bannock County Defendants, infirmities in the
nature of proof in the record warranted their dismissal. In other words, according to Plaintiff’s
counsel, only Plaintiff’s Section 1983 failure to protect claim against Defendants Shannon
Bloxham and Ifereimi Tabakece should survive summary judgment. With that understanding in
mind, this Memorandum Decision and Order focuses only upon Plaintiff’s Section 1983 failure
to protect claim against these individuals.
MEMORANDUM DECISION AND ORDER - 3

II. DISCUSSION
A.

Legal Standards
1.

Summary Judgment

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary
judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-34 (1986). It is “not a disfavored procedural shortcut,” but is instead
the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute
as to any material fact – a fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and
the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant
must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.
1999). On the other hand, the Court is not required to adopt unreasonable inferences from
circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). To carry this burden, the moving party need not introduce any affirmative evidence (such

MEMORANDUM DECISION AND ORDER - 4

as affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the nonmoving party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go
beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477
U.S. at 324.
2.

Section 1983, Failure to Protect, and Deliberate Indifference

“Section 1983 does not create any substantive rights, but is instead a vehicle by which
plaintiffs can bring federal constitutional and statutory challenges to actions by state and local
officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citing Cholla Ready Mix,
Inc. v. Civish, 382 F.3d 969, 978 (9th Cir. 2004)). “The purpose of [Section] 1983 is to deter
state actors from using the badge of their authority to deprive individuals of their federally
guaranteed rights.” Id. (citation omitted). To state a valid claim under Section 1983, a plaintiff
must allege a violation of rights protected by the Constitution or created by federal statute
proximately caused by the conduct of a person acting under color of state law. See Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Plaintiff alleges an Eighth Amendment violation based on a failure to prevent harm. “A
prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates
the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1970) (internal quotation
marks omitted). To prevail on such an Eighth Amendment claim, the plaintiff must satisfy three

MEMORANDUM DECISION AND ORDER - 5

requirements which include both objective and subjective components. First, the plaintiff must
show that he is incarcerated under conditions where the prison official could infer a substantial
risk of harm – this is the “objective” element of the test. See id. at 834-37. Second, the plaintiff
must show that the prison official actually made that inference – this is the “subjective” element
of the test. See id. at 837; see also Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1188 (9th
Cir. 2002) (“If a [prison official] should have been aware of the risk, but was not, then the
[prison official] has not violated the Eighth Amendment, no matter how severe the risk.”).
Third, the plaintiff must show that the prison official was deliberately indifferent to a substantial
risk of serious harm, i.e., the prison official must have known of and disregarded an excessive
risk to the prisoner’s safety. See Farmer, 511 U.S. at 837. Mere negligent failure to protect an
inmate from harm is not actionable under Section 1983. See id. at 835.
B.

The Bannock County Defendants are Entitled to Summary Judgment
Though not detailed within the Amended Civil Rights Complaint, Plaintiff’s claims

against Defendants Bloxham and Ifereimi have evolved to reflect a criticism of their conduct in
the moments leading up to, and immediately following, Mr. Van Orden’s suicide – namely that,
(1) during each of their security walk-throughs, neither bothered to move/remove the roll/piece
of toilet paper which obscured a full view into Mr. Van Orden’s cell; and (2) the noose knife
could not be located and utilized once they learned that Mr. Van Orden had hung himself. See,
e.g., Opp. to MSJ, pp. 5-11 (Docket Nos. 53 & 53, Att. 1). In this respect, Plaintiff’s claims are
premised upon alleged violations of Bannock County Jail policy by Defendants Bloxham and
Ifereimi, arguing:
There are several genuine issues of fact against these several defendants. One being
as to whether or not Jason Van Orden would be deceased had the several defendants
adequately enforced the rules and policies of the jail. This would have been done by
not allowing Mr. Van Orden to be naked or partially naked in his cell, masturbate
MEMORANDUM DECISION AND ORDER - 6

in his cell, not allow Mr. Van Orden to obscure the view of his cell window, and by
viewing the entire cell to make sure Mr. Van Orden was not tearing up his bedding
to make a noose to kill himself with. This is further supported by the deposition
testimony of Ifereimi Tabakece where he admitted, among other things that part of
his job was to keep the inmates safe and warn the inmates of violations. He also
admitted to directly violating jail policy with regard to not waiting to make sure Mr.
Van Orden had complied with his commands regarding jail policy violations.
While not nearly as overt in her constitutional violations of Mr. Van Orden, Shannon
Bloxham’s deposition testimony also gives rise to constitutional concerns. Corporal
Bloxham characterized her duties at the jail as “adult babysitting.” She testified that
her job was only to make sure the inmates were “breathing” or “alive.” She was
trained on mental health issues and what to look for in those who were possibly
suffering from mental illness and suicide ideation. She testified that there were
several attempted suicides while she worked for the Bannock County Sheriff’s
Office. She testified that there was a specific piece of potentially lifesaving
equipment which could have been used in Mr. Van Orden’s suicide, but the “noose
knife” was missing from the officer’s station where it was supposed to be kept.
When pressed as to where the lifesaving piece of equipment was supposed to be
located, she testified that it moved, depending on who touched it last. She testified
that it was eventually found but couldn’t tell how long it took to find or where it was
eventually found. This is in contrast to Deputy Tabakece’s deposition testimony that
he knew where the knife was every time he worked a shift. The knife was supposed
to be located on the medical box in the officer’s station and he could not explain why
he either did not check for it when he came on duty, or where it went during Mr. Van
Orden’s suicide. Both Deputy Tabakece and Corporal Bloxham referred to the
instrument used to cut down hanging victims as a “noose knife.” By its very name
it has but one function, to cut down a potential suicide victim who is hanging
themself, yet it could not be found during the one event it was specifically designed
for. . . . .
While Deputy Tabakece testified that it was a violation of jail policy to put any
obstruction on the window to the jail cells, Corporal Bloxham testified that it was
more of a respect issue. That inmates covered the window when they went to the
bathroom. If Corporal Bloxham’s testimony is to be believed, Jason Van Orden
wasn’t using the bathroom when he was engaged by Corporal Bloxham or Deputy
Tabakece, so why did they allow the toilet paper to remain and obscure the view of
the cell in violation of Jail policy?
Id. at pp. 5-7 (Docket Nos. 53 & 53, Att. 1) (internal citations omitted) (emphasis added).
However, even if Mr. Van Orden was able to commit suicide due to Defendant
Tabakece’s and Defendant Bloxham’s failure to “adequately enforce[ ] the rules and policies of
MEMORANDUM DECISION AND ORDER - 7

the jail,” this is not enough. Such allegations, even if construed most favorably on this record in
favor of Plaintiff, amount only to claims of negligence. They do not rise to the level of proof of
a deliberate indifference of a substantial risk of harm needed to support a Section 1983 failure to
protect claim. See Cabrera v. Clark County Detention Center, 2016 WL 1449581, *8 (D. Nev.
2016) (“Even if this could be construed as a violation of NaphCare’s policy (which states that
inmates with non-urgent sick call requests must be ‘seen’ the next business day), this is at best
evidence of negligence, which is not enough to establish a deliberate indifference claim.”) (citing
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in diagnosing or
treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment
rights.”)); see also Calton v. Livingston, 2011 WL 2118700, *12 (S.D. Tex. 2011) (“To the
extent that Calton claims that the defendants violated prison policy, it is well established that an
officer’s failure to follow prison rules, standing alone, does not warrant relief under 42 U.S.C.
§ 1983.”). To be clear, proving deliberate indifference in this setting requires more than a
showing of negligence. Instead, Plaintiff must establish (or, at this stage of the litigation, raise a
genuine dispute as to a material fact) that Defendants Tabakece and Bloxham failed to take
measures to prevent Mr. Van Orden from committing suicide, despite knowing of a substantial
risk that Mr. Van Orden would, in fact, commit suicide. On this lynchpin point, the evidence is
lacking.
Plaintiff’s evidence is bare of anything to suggest that Defendants Tabakece and
Bloxham were aware of any risk that Mr. Van Orden might commit suicide that evening. To the
contrary, the evidence suggests just the opposite – that is, from the time Mr. Van Orden was seen
at Portneuf Medical Center following his stand-off with the City of Pocatello police, to the time

MEMORANDUM DECISION AND ORDER - 8

he committed suicide at the Bannock County jail, there was no indication that he might attempt
to kill himself. For example:
•

At Portneuf Medical Center, (1) Dr. John Conner, M.D. reviewed all systems
and found that Mr. Van Orden had “no previous psychiatric history”; (2) Mr.
Van Orden “denie[d] mental status changes”; (3) Dr. Conner did not find any
suicidal or other concerning tendencies; and (4) Dr. Conner found that Mr.
Van Orden was “medically cleared for non-medical unit” at the Bannock
County Jail. See SOF NO. 2 (Docket No. 52, Att. 2) (citing Peterson Aff.,
¶ 5 (Docket No. 52, Att. 6)). The medical records from Portneuf Medical
Center were provided to the Bannock County Jail, and maintained as part of
the jail’s regular business records. See id; see also Ex. A to Peterson Aff.
(Docket No. 52, Att. 6).

•

At the Bannock County Jail, Mr. Van Orden was given the “Bannock County
Sheriff’s Office PREA Inmate Assessment” during booking. See SOF No.
3 (Docket No. 52, Att. 2) (citing Peterson Aff., ¶ 6 (Docket No. 52, Att. 6));
see also Ex. B to Peterson Aff. (Docket No. 52, Att. 7). During that
assessment:
•

•

Mr. Van Orden was asked: “Have you ever thought about committing
suicide?” Mr. Van Orden responded: “No.” See id.5

•

Mr. Van Orden was asked: “Are you currently thinking about
suicide?” Mr. Van Orden responded: “No.” See id.

•

Mr. Van Orden was asked: “Has anyone in your immediate family
committed or attempted suicide?” Mr. Van Orden responded: “No.”
See id.

•

•

Mr. Van Orden was asked: “Are you currently having any thoughts
of suicide or have any suicidal history?” Mr. Van Orden responded:
“No.” See id.

Mr. Van Orden was asked: “Are you in need of special care of any
kind?” Mr. Van Orden responded: “No.” See id.

Shortly after booking at the Bannock County Jail, Mr. Van Orden was
provided with a “Health Assessment” by Correctional Healthcare Companies

5

In reality, Mr. Van Orden had previously attempted to commit suicide. See SOF No. 9
(Docket No. 52, Att. 2). However, this was never made known to personnel at the Bannock
County Jail. See id.
MEMORANDUM DECISION AND ORDER - 9

(“CHM”), an independently contracted medical provider for the Bannock
County Jail. See SOF No. 4 (Docket No. 52, Att. 2) (citing Peterson Aff., ¶ 7
(Docket No. 52, Att. 6)); see also Ex. D to Peterson Aff. (Docket No. 52, Att.
8). Therein, the nurse did not see any indicator or chart any concern that
would necessitate a “suicide watch.” See id.
•

Because Mr. Van Orden admitted to being under the influence of
methamphetamine, it was determined that he would be placed on “closed
custody” (“CC”) watch for two days. See SOF No. 5 (Docket No. 52, Att.
2) (citing Peterson Aff., ¶ 8 (Docket No. 52, Att. 6)). At 11:40 a.m. on
August 15, 2013, Mr. Van Orden was placed under CC and the nurse noted
that he stated that he was “not suicidal.” See id.; see also Ex. C to Peterson
Aff. (Docket No. 52, Att. 8). Members of the CHM “medical staff” are the
only individuals that can make a decision to move an inmate from CC to the
general population. See Peterson Aff., ¶ 8 (Docket no. 52, Att. 6).

•

Mr. Van Orden was checked and charted for every fifteen minutes of the next
two days. See SOF No. 6 (Docket No. 52, Att. 2) (citing Peterson Aff., ¶ 9
(Docket No. 52, Att. 6)). At the end of the two days, the nurse charted: “Pt.
Alert & responsive, oriented x4"; that he was “pleasant and cooperative”;
that he “denies n/v/d”; and that he was “ok to be housed and released from
CC.” Id.; see also Ex. C to Peterson Aff. (Docket No. 52, Att. 8).

•

The on-duty nurse for CHM determined that Mr. Van Orden was not a
suicide threat, and released him to be housed in the general population. See
SOF No. 6 (Docket no. 52, Att. 2). Mr. Van Orden was housed in C-POD,
in Cell No. 8. See id. at SOF No. 8.

•

Deputies made regular security checks in C-POD during the afternoon and
evening of August 29, 2013. See SOF NO. 11 (Docket No. 52, Att. 2).

•

On August 29, 2013, the jail sensor logs for C-POD indicate that checks were
conducted near Mr. Van Orden’s Cell No. 8 at the following times:
•
•
•
•
•
•
•
•
•
•

5:59 p.m. (by Defendant Tabakece)
6:13 p.m. (by Defendant Bloxham)
6:50 p.m. (by Defendant Tabakece)
7:23 p.m. (by Defendant Tabakece)
7:52 p.m. (by Defendant Bloxham)
8:13 p.m. (by Defendant Tabakece)
8:52 p.m. (by Defendant Bloxham)
9:12 p.m. (by Defendant Tabakece)
10:00 p.m. (by Defendant Bloxham)
10:51 p.m. (by Defendant Bloxham)

MEMORANDUM DECISION AND ORDER - 10

See SOF No. 12 (Docket No. 52, Att. 2) (citing Bloxham Aff., ¶ 5 (Docket
No. 52, Att. 4)).
•

During the 8:52 p.m. walk-through, Defendant Bloxham stopped at Cell No.
8 and saw that toilet paper partially obscured the window. See SOF No. 13
(Docket No. 52, Att. 2) (citing Bloxham Aff., ¶ 6 (Docket No. 52, Att. 4)).
However, around the edge of the toilet paper she could see Mr. Van Orden
sitting on the edge of his bed. See id. Defendant Bloxham asked Mr. Van
Orden if “he was okay or if he needed anything.” Id. Mr. Van Orden said
he was fine and Defendant Bloxham said: “Okay, have a good night.” Id.6

•

In Defendant Tabakece’s walk-through at 9:12 p.m. he was able to observe
Mr. Van Orden in his cell through the cell door’s window. See SOF No. 14
(Docket No. 52, Att. 2) (citing Tabakece Aff., ¶ 5 (Docket No. 52, Att. 3)).
Defendant Tabakece observed that Mr. Van Orden was naked and that he was
both walking around the cell and then sitting on the bed. See id. Defendant
Tabakece then saw Mr. Van Orden touching his penis and masturbating at
which time Defendant Tabakece kicked the door and told Mr. Van Orden to
“knock it off.” See id.7

•

Approximately 18 minutes later, another inmate discovered Mr. Van Orden
hanging by a bed sheet from the bunk in his cell and alerted Defendant
Tabakece who immediately issued a medical back-up call and responded to
Cell No. 8. See SOF No. 16 (Docket No. 52, Att. 2) (citing Tabakece Aff.,
¶ 7 (Docket No. 52, Att. 3)).

From these undisputed facts, it cannot be said that Defendants Tabakece and Bloxham
were ever on notice that Mr. Van Orden represented a suicide risk.8 Had they been on such
6

Defendant Bloxham said inmates occasionally place toilet paper to obscure the window
for privacy to use the bathroom. See SOF No. 13 (Docket No. 52, Att. 2) (citing Bloxham Aff.,
¶ 6 (Docket No. 52, Att. 4)). According to Bloxham, if the deputies still have visibility into the
cell around the edge of the toilet paper, they do not require the paper to be removed. See id.
7

Defendant Tabakece acknowledges that it is a violation of jail rules for an inmate to
masturbate, and that jail deputies have the discretion to give a warning to an inmate before
writing them up for a violation. See SOF No. 15 (Docket No. 52, Att. 2) (citing Tabakece Aff.,
¶ 6 (Docket No. 52, Att. 3)). In this case, Defendant Tabakece gave Mr. Van Orden a verbal
warning to stop masturbating. See id.
8

Plaintiff argues that Defendants Tabakece and Bloxham had general knowledge of
other suicide attempts at the Bannock County Jail in the past. See Opp. to MSJ, p. 8 (Docket No.
53, Att. 1). But this type of general knowledge is not the same as a subjective understanding that
Mr. Van Orden at that time and place might commit suicide. Absent this more focused
subjective element, there can be no deliberate indifference.
MEMORANDUM DECISION AND ORDER - 11

notice, (and did nothing in the face of such knowledge – or, even, violated jail policy in the ways
Plaintiff contends here), then summary judgment would not be appropriate. But that is not the
record of this case. Even if Defendants Tabakece and Bloxham could have taken different
actions in the moments leading up to Mr. Van Orden’s death, such possibilities do not change the
fact that they were never aware of a substantial risk that Mr. Van Order would hang himself.
Though perhaps negligent, without the subjective awareness of this risk of harm to Mr. Van
Orden, Plaintiff’s Section 1983 failure to protect claim cannot stand.9 Mr. Van Orden’s death is
a tragedy, to be sure; but it is not actionable as against Defendants Tabakece and Bloxham. The
Bannock County Defendants’ Motion for Summary Judgment is granted.
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion for
Summary Judgment (Docket No. 52) is GRANTED.
DATED: August 24, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

9

Plaintiff’s allegations surrounding the misplacement of the noose knife also speak to a
negligence claim, not a Section 1983 claim. While arguably shameful if true, any argument in
this respect does not inform the integral issue of Defendant Tabakece’s and Defendant
Bloxham’s subjective knowledge of any substantial risk of harm preceding Mr. Van Orden’s
death.
MEMORANDUM DECISION AND ORDER - 12