Harvey v. Douglas County, Kansas Board of Commissioners et al
Filing
233
MEMORANDUM AND ORDER granting in part and denying in part 208 Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 3/28/2018. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THE ESTATE OF RACHEL M. HAMMERS,
DECEASED, et al.,
Plaintiffs,
Case No. 15-7994-CM
v.
DOUGLAS COUNTY, KANSAS BOARD OF
COMMISSIONERS, et al.,
Defendants.
MEMORANDUM AND ORDER
On May 12, 2012, Rachel M. Hammers died in her cell at the Douglas County Corrections
Facility (“DCCF”). Her estate and three minor children, through her father Joseph M. Harvey, the
administrator of the estate and conservator of the children, bring this action against Douglas County,
Kansas Board of Commissioners (“BOCC”), and Sheriff Kenneth M. McGovern and Undersheriff
Kenneth L. Massey in their individual and official capacities. Plaintiffs claim that Hammers’s death was
the result of inadequate policies or practices implemented by defendants and because of inadequate
training as to the proper implementation of policies and practices. The matter is currently before the
court on defendants’ Motion for Summary Judgment (Doc. 208). For the reasons discussed below, the
court grants defendants’ motion in part and denies it in part.
I.
Background
a. Hammers’s Death
The following facts are summarized and viewed in the light most favorable to plaintiff. There is
little dispute as to the general events that took place leading up to Hammers’s death. Hammers suffered
from alcoholism and had a history of seizures, high blood pressure, and alcohol withdrawal. On February
-1-
24, 2012, Hammers pled guilty to two counts of Driving Under the Influence in Douglas County District
Court and was sentenced to 12 months of supervised parole in lieu of six months incarceration. She was
also ordered to serve 48 hours on each charge. Prior to this incarceration, Hammers consulted with her
primary care physician, Dr. Molly Imber, regarding her concerns with alcohol withdrawal and
hypertension. Hammers was afraid of having another seizure while incarcerated. Dr. Imber prescribed
a tapering course of Librium for alcohol withdrawal and faxed Hammers’s medical records to DCCF.
When Hammers arrived at DCCF on March 23, 2012 to serve her sentence, DCCF staff
conducted a Booking Initial Assessment (“BIA”) in which Hammers reported a history of depression,
daily alcohol use, a history of alcohol withdrawal, related seizures, and high blood pressure. She also
reported taking medications for depression and high blood pressure and Librium to prevent seizures.
While Hammers was incarcerated during this time, she experienced both moderate and severe alcohol
withdrawal. She was released on March 27, 2012.
On April 5 and April 12, 2012, the Douglas County District Court issued bench warrants for
Hammers’s arrest due to parole violations. On April 19, 2012, Hammers checked herself into Lawrence
Memorial Hospital for alcohol intoxication, depression, and suicidal thoughts. She was arrested again
on April 22, 2012 and during her BIA she reported a history of depression, monthly alcohol use, a history
of alcohol withdrawal-related seizures, and high blood pressure. She reported taking medication for
depression and high blood pressure and Librium to prevent seizures. Hammers was incarcerated at DCCF
until April 30, 2012 without any incidents related to alcohol withdrawal.
On May 3, 2012, the Douglas County District Court issued a third bench warrant for Hammers’s
arrest for failing to appear on a parole violation charge. On the morning of May 11, 2012, Hammers
called her mother, Mary Harvey, requesting help with her children because the police were at her door.
Mary Harvey picked up Hammers’s daughter, drove her to school, and then ran errands. When she
-2-
arrived back at Hammers’s apartment around 10:00 a.m., she found Hammers intoxicated. Later that
afternoon, Mary Harvey and Rachel’s father, Dr. Joseph Harvey, decided to call the police. Around 4:30
p.m., police arrived and noted in the arrest report that Hammers was “drunk” but cooperative. At 5:57
p.m., Officer Troy Miller conducted Hammers’s BIA. In the BIA, Officer Miller noted that pursuant to
his observation, Hammers was not alcohol intoxicated and did not display withdrawal symptoms.
Hammers reported to Officer Miller that she had depression and high blood pressure and had a seizure
in 2010. She reported that she drank alcohol daily and had her last drink at 10:00 a.m. that day. Based
on his observations, Officer Miller did not see any indication Hammers had any mental or physical
problems before he transferred her to the housing unit. Pursuant to DCCF policy, Hammers was
scheduled to see the nurse the following day.
At approximately 6:45 p.m., Hammers arrived in the women’s housing pod. Officer Megan
Walker briefed Hammers and provided her an Inmate Handbook. She did not notice Hammers
displaying any symptoms of alcohol withdrawal. Hammers was placed in a cell with another inmate,
Ashley Dubree, who also did not notice Hammers demonstrating any signs or symptoms of withdrawal
and did not consider Hammers to be drunk.
The overnight officer who performed “well checks” throughout the women’s pod every 30
minutes did not report any issues of concern involving Hammers. At approximately 7:15 a.m. on May
12, 2012, Dubree and Hammers left their cell to obtain a meal tray. After 15 or 20 minutes, they returned
to their cell and went back to sleep. Dubree noticed Hammers was snoring and sounded like she was
congested and having a hard time breathing, but otherwise did not think anything was wrong with her.
At some point, Officer Walker called Dubree and Hammers to tell them to take a shower and clean up
their cell. Dubree eventually finished cleaning the cell and left to take a shower. Officer Walker used
the intercom system to ask Hammers if she wanted to take free time. When she did not respond, Officer
-3-
Walker opened the door to the cell to ask Hammers if she wanted free time, and Hammers appeared to
be sleeping. Officer Walker contacted another officer for back-up, but decided to enter the cell alone.
She shook Hammers to try to wake her, and when she did not respond, Officer Walker called a code 900
medical emergency. After determining Hammers did not have a pulse, Officer Walker began CPR. At
10:04 a.m., EMTs from the Lawrence Douglas County Fire and Medical entered the cell and took
Hammers to Lawrence Memorial Hospital, where she was pronounced dead at 10:46 a.m. The cause of
death on Hammers’s death certificate listed sudden death due to seizure disorder probably related to
ethanol withdrawal due to chronic ethanolism.
b. DCCF Operations
Because plaintiffs’ claims focus on policies and procedures at DCCF, it is necessary to
summarize any relevant police and procedures for purposes of this order. Prior to Hammers’s death,
Douglas County acknowledged a high incidence of alcohol dependency among DCCF inmates. In a
response to a Request for Proposals issued by the City of Lawrence for 2009 Alcohol Tax Funds, the
Douglas County Sheriff’s Office – Corrections Division, requested funds for substance abuse therapies
and care for inmates. Year-end reports in 2009, 2010, 2011, and 2012 issued by DCCF note that many
times arrestees are brought to jail under the influence of alcohol and drugs.
Defendant Sheriff McGovern and defendant Undersheriff Massey (who served as the Corrections
Division Undersheriff) were responsible for the safety of DCCF prisoners. The Corrections Division
Policy and Procedure Manual contains departmental policies that pertain to the operations of the
corrections division. This includes policies and procedures for the booking, house, and medical units.
The BOCC was responsible for developing medical contracts for DCCF. On January 10, 2011, the
BOCC approved and executed contracts with Dr. Dennis Sale and the Visiting Nurses Association
(“VNA”) to provide medical services for DCCF. Both contracts are between the practitioners and the
-4-
BOCC and are signed by the chair of the BOCC. The contracts outline the duties of the providers,
including providing comprehensive health care to inmates and to provide policies and procedures for
health services specifically developed for [DCCF] in accordance with American Correctional
Association (“ACA”) standards. The contract also specifies the hours of services for the providers.
According to the contracts, Dr. Sale was to provide an on-call physician 24 hours a day, 7 days a week,
and a licensed physician on-site two days per week for a minimum of three hours a day. Under the VNA
contract, VNA was to provide a 24/7 on-call system for nursing staff and the following on-site schedule:
(Doc. 221-21, at 2.) Therefore, at the time Hammers arrived at DCCF until the time she was taken to
the hospital, the personnel scheduled to be at DCCF were:
One Licensed Practical Nurse1 (“LPN”) from 3:00 p.m. – 11:00 p.m. on Friday May 11
One LPN from 10:30 a.m. – 5:30 p.m. on Saturday May 12
1
An LPN can provide nursing services under the direction of a registered nurse or a physician, but does not have the
authority to diagnose. An LPN can provide basic clinical examination such as blood pressure or taking a pulse, but a
registered nurse is the only one who does an assessment and develops a plan of care. (Doc. 222-35, at 4; Doc. 222-5, at 8.)
-5-
One Certified Medication Aide2 from 6:00 a.m. – 10:00 a.m. on Saturday May 12
Therefore, during Hammers’s incarceration from May 11 until her death on the morning of May 12,
there was no medical staff on-site that was qualified to develop a plan of care or diagnose her with any
ailments. If, however, an inmate required medical treatment when medical staff was not present or the
medical staff on-site was not qualified to make diagnoses, the inmate would be transferred to Lawrence
Memorial Hospital.
The Douglas County Sheriff’s Office Corrections Division Policies and Procedures, Policy 7.1
Arrestee Admission Procedures outlines the procedures for arrestee arrival and the booking/intake
process. According to Policy 7.1, the Booking Officer will “conduct Arrestee Health Assessment
(mental/physical), refer to 7.1 A for diversion of intake due to medical or mental health concerns. The
Booking Officer is responsible for determining if the incoming arrestee requires any special
considerations such as: significant injuries or illness or significant impairment due to influence of alcohol
and/or drugs. According to Policy 7.1 A “Arrestee Health Assessment Diversion Procedures,” the shift
supervisor is responsible for diverting arrestees to a medical/mental health provider if the arrestee
appears to have obvious significant injuries requiring medical attention or extreme incoherence due to
influence of alcohol and/or drugs. Preliminary screening procedures, promulgated by the Sheriff’s
Department and VNA, direct the intake corrections staff to ask the arrestee upon arrival the medical
questions on the medical admit form. If the inmate is found to have an urgent medical problem, the
inmate is to be sent for immediate medical care to see the licensed nurse on duty or to the hospital. A
copy of the medical admit form is to be placed in the nurse’s file during booking, and the nurse is to
review the forms the next working day and see the inmate for urgent health concerns.
2
A certified medication aide cannot make medical decisions, and can only dispense prescribed medications. (Doc. 222-35,
at 4.)
-6-
DCCF utilizes the “Spillman Jail Management System” to track inmates. When arrestees arrive
for booking, as part of the medical assessment the Booking Officer conducts a BIA, which is
incorporated in the Spillman system. The BIA includes medical and mental health questions that the
officer reads to the arrestee and then inputs the arrestee’s answers. If an inmate has previously taken the
BIA, their previous answers should appear under each question. The system then generates red flags,
including medical alert flags, to alert users of a potentially dangerous inmates or special care that needs
to be taken. When the BIA is complete, two copies of the form are printed, one copy is set aside for
nurses, the other goes into the In-Custody Inmate File. Medical alert flags do not appear on the printed
forms and there is no written policy instructing officers what to do if a medical alert flag appears in the
Spillman system.
Policies and procedures promulgated by the Sheriff’s Department and the VNA also address
detoxification. According to these policies, if the correction staff notices someone he/she feels is coming
off drugs and alcohol and is showing symptoms, the inmate should be referred to the nurse. In two of
the policies, a follow up call to the doctor is required. In one policy the call to the physician is permissive.
The polices also do not define any clinical symptomatology would trigger the policy and leaves the
discretion up to the corrections officer to decide if they feel the inmate is detoxifying. DCCF also has
standing orders with protocols related to alcohol withdrawal which include multiple versions of alcohol
withdrawal assessment scales. According to one of the scales, a score of “5” should be given for a
previous history of withdrawal, and a score of “5” should be given for a history of alcohol-withdrawal
seizures. This scale also includes scoring various symptoms the person is experiencing. Any score of
10 or above indicates moderate to severe withdrawal.
Another assessment notes that “[p]ulse,
temperature, and B/P will increase with withdrawal” and to “[a]lways check their chart. If they have
been on Librium in the past for alcohol withdrawal they may need it again.” (Doc. 222-34, at 20.)
-7-
According to plaintiffs, based on these assessments, Hammers should have been given a score of “10”
based on her past history.
II.
Legal Standards
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A “genuine” factual dispute requires more than a mere scintilla of evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party demonstrates an absence of evidence in support of an element of the
case, the burden then shifts to the nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.” Anderson, 477 U.S. at 248. The nonmoving party “may not rest upon the
mere allegations or denials of his pleading.” Id.
In making the summary judgment determination, the court must view the evidence and
reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). Ultimately, the court evaluates “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must prevail
as a matter of law.” Liberty Lobby, 477 U.S. at 252.
III.
Analysis
Plaintiffs bring multiple claims against the BOCC and against McGovern and Massey in their
official and individual capacities. The claims are as follows:
Deliberate Indifference to Serious Medical Need and Failure to Provide Access to
Medical Personnel for Evaluation and Treatment under 42 U.S.C. § 1983
-8-
Failure to Train/Inadequate Training under 42 U.S.C. § 1983
Failure to Supervise/Inadequate Supervision under 42 U.S.C. § 1983
Wrongful Death
Negligence
a. Official Capacity § 1983 Claims
Plaintiffs bring three claims under 42 U.S.C. § 1983 against defendants in their official capacity.
The claims, however, all relate to defendants’ municipal liability under Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978). In Monell, the United States Supreme Court held that a municipality can be liable
under § 1983 for violations of civil rights if the violation is the result of a “policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.” 436 U.S. at 690.
This “official policy” requirement distinguishes the act of the municipality from acts of the employees
of the municipality, as municipality liability cannot derive from a theory of respondeat superior. See
Pembaur v. City of Cincinnati, 475 U.S. 469, 479–80 (1986). A government, therefore, cannot be sued
under § 1983 for injuries caused by its employees, rather, liability only attaches “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflict the injury.” Monell, 436 U.S. at 694.
Municipality liability may be imposed “for a single decision by municipal policymakers” when
that decisionmaker “possesses final authority to establish municipal policy with respect to the action
ordered.” Pembaur, 475 U.S. at 480–81; see also City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988) (“[o]nly those municipal officers who have ‘final policymaking authority’ may by their actions
subject the government to § 1983 liability.”). Whether an official has final policymaking authority is a
question of state law. Praprotnik, 485 U.S. at 123.
-9-
Official capacity suits “generally represent only another way of pleading an action against an
entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing Monell,
436 U.S. at 690 n.55). An official capacity suit is not against the official personally, “for the real party
in interest is the entity.” Id. at 166.
Here, plaintiffs’ § 1983 claims are based on three policies or practices: 1) policies and practices
that resulted in a deliberate indifference to serious medical needs and failure to provide access to medical
personnel for evaluation and treatment, 2) deliberately indifferent training, and 3) deliberately indifferent
supervision. See Section 1983 Litigation Second Edition, 2008 WL 6983697 (noting that deliberately
indifferent training and deliberately indifferent supervision or discipline are a type of policy and practice
that may give rise to § 1983 liability.)
It is necessary first to determine who the proper parties are for the official capacity claims.
Plaintiffs list the BOCC, Sheriff McGovern and Undersheriff Massey as defendants in their official
capacities. In official capacity suits under §1983—which are claims against the governmental entity
itself—the court must determine, as a matter of law, which defendants are “final policymakers,” looking
to state law for guidance. Under Kansas law, the sheriff is an independent elected official of the county.
See Kan. Stat. Ann. § 19–801a; Blume v. Meneley, 283 F. Supp. 2d 1171, 1174 (“The sheriff is an
independently elected officer whose office, duties, and authorities are established and delegated by the
legislature. The sheriff is not a subordinate of the board of county commissioners . . . .”) (quoting Bd.
of Cnty. Comm’rs of Cnty. of Lincoln, Kan. v. Nielander, 62 P.3d 247 (Kan. 2003))). “The Board of
County Commissioners has no authority to supervise, discipline, or remove the sheriff or his subordinates
. . . [a]ccordingly, the conduct of the sheriff and his subordinates cannot be attributed to the county
commissioners.” Lee v. Wyandotte Cnty, Kan., 586 F. Supp. 236, 238–39 (D. Kan. 1984). An
undersheriff, according to Kansas law, serves at the pleasure of the sheriff. See Kan. Stat. Ann. § 19-
-10-
803. In regard to jail management, “[t]he sheriff shall have the charge and custody of the jail of his
county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for
whose acts he and his sureties shall be liable.” Kan. Stat. Ann. § 19-811. Therefore, the court finds
Sheriff McGovern, in his official capacity, is the final policymaker when it comes to policies and
procedures within the jail. Claims against Undersheriff Massey in his official capacity are dismissed.
Because decisions regarding medical staff at the jail are also at issue, the court finds the BOCC
is the final policymaker regarding the contracts made with Dr. Sale and VNA. Evidence in the record
shows that the contracts between the BOCC and Dr. Sale and VNA were drafted and signed by the
BOCC. Therefore, the BOCC is the final policymaker and liable entity for any injuries caused by policies
in place regarding medical staff at the jail.
i.
Count I - Deliberate Indifference to Serious Medical Need
Having decided the appropriate parties, the court must now determine whether defendants are
entitled to summary judgment on plaintiffs’ official capacity § 1983 claims. Plaintiffs first allege that
Hammers’s constitutional rights under the Eighth and Fourteenth Amendment were violated because the
BOCC and Sheriff McGovern promulgated policies, practices, and customs that were deliberately
indifferent to the medical needs of DCCF inmates, including access to medical personnel.
The government has an obligation to provide medical care for “those whom it is punishing by
incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Because an inmate must rely on prison
officials to treat his medical needs, “if the authorities fail to do so, those needs will not be met.” Id. at
104.
Therefore, a deliberate indifference to serious medical needs of prisoners “constitutes the
‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Id. Whether the
indifference is through a prison doctor’s response to an inmate’s needs or through an intentional delay
or denial of access to medical care, the deliberate indifference to a prisoner’s serious illness or injury
-11-
states a claim under § 1983. Id. at 104–05. Under the due process clause in the Fourteenth Amendment,
a pretrial detainee is entitled to the same degree of protection regarding medical care as a convicted
inmate under the Eighth Amendment. Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992). It
is uncontroverted that Hammers was a pretrial detainee.
To grant summary judgment for defendants, the court must find that the evidence regarding
defendants’ deliberate indifference, viewed in the light most favorable to plaintiffs, is so one-sided that
they are entitled to judgment as a matter of law. Deliberate indifference lies “somewhere between the
poles of negligence at one end and purpose or knowledge at the other.” Farmer v. Brennan, 511 U.S.
825, 836 (1994). Deliberate indifference to the serious medical needs of prisoners is more than mere
negligence in diagnosing or treating a medical condition. Id. at 835. Rather, “acting or failing to act
with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of
recklessly disregarding that risk.” Id. at 836. Therefore, a prison official can only be found liable for
deliberate indifference to prisoners’ medical needs if the official “knows of and disregards an excessive
risk to inmate health or safety.” Id. at 837.
For that reason, finding deliberate indifference to an inmate’s serious medical needs involves
both an objective and subjective requirement. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000). To meet the objective component, the prisoner must produce evidence that the medical need was
“sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). A medical need is sufficiently
serious if “it is one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Id. A
delay in medical care is only a constitutional violation where the prisoner can show the delay resulted in
“substantial harm” which may be satisfied by “lifelong handicap, permanent loss, or considerable pain.”
Id.
-12-
To meet the subjective prong of the deliberate indifference test, the prisoner must have evidence
of “the prison official’s culpable state of mind.” Id.
This test is met if the official “knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also
draw the inference.” Id. Whether an official has the requisite knowledge of a substantial risk “is a
question of fact subject to demonstration in the usual ways, including inference from circumstantial
evidence. . . .” Farmer, 511 U.S. at 842.
Defendants argue they are entitled to summary judgment because no Douglas County employee
was deliberately indifference to Hammers’s serious medical needs. Defendants claim no official was
aware of Hammers’s medical need during her incarceration and therefore plaintiffs cannot meet the
subjective component of the deliberately indifferent test. Defendants emphasize the fact that when
Hammers arrived at DCCF, no official noticed her demonstrating any signs of intoxication or
withdrawal.
Plaintiffs, however, argue there is evidence in the record to show officials knew that many of
their inmates come to DCCF intoxicated and that therefore they should have proper procedures in place
to monitor detoxifying inmates, including having proper medical staff on-site.
They also claim
defendants knew of Hammers’s prior history with alcohol withdrawal and alcohol withdrawal-related
seizures because of the records from her prior incarcerations, and therefore were deliberately indifferent
because the policies in place did not require any immediate assessment, care, or referral to medical staff.
The court finds there are factual disputes at issue as to whether defendants had the requisite
knowledge and whether the policies in place were deliberately indifferent to Hammers’s medical needs
and ultimately caused her death. The court believes there is sufficient evidence in the record, including
-13-
expert testimony, that a reasonable jury may find for plaintiffs. Defendants’ motion for summary
judgment on Count I is denied.
ii.
Counts II & III – Inadequate Training, Failure to Supervise
Plaintiffs also claim that defendants are liable under § 1983 for inadequate training and failure to
supervise. The United States Supreme Court has recognized that a municipality’s failure to provide
training to employees, which caused a violation of constitutional rights, is actionable under § 1983 if
“that city’s failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). A plaintiff claiming inadequate training under
§ 1983 must show a specific training deficiency that, “in light of the duties assigned to specific officers
or employees, the need for more or different training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifference to the need.” Id. at 390. It is not sufficient to simply show that an injury
or accident could have been avoided if an officer had better training. Id. at 391.
Plaintiffs claim Sheriff McGovern had the authority to train correctional officers at DCCF to
recognize non-emergent serious medical conditions that do not require immediate diversion to an offsite health care provider but that do require prompt medical care, including the risk of alcohol
withdrawal, and that the training program at DCCF was inadequate to train officers to do so. Defendants
argue that this deficiency was not “so obvious” that it rises to the level of deliberate indifference under
§ 1983. In reviewing the evidence in the record, however, the court finds there are issues of fact as to
whether the lack of training was obvious. Both parties have presented various versions of policies and
assessments in place at DCCF used for evaluating inmates’ medical conditions, including alcohol
withdrawal. A jury may reasonably find, for example, that all the policies in place and the lack of a
-14-
consistent and comprehensive strategy for evaluating inmates’ medical needs is a violation of § 1983.
Defendants’ motion for summary judgment on Count II is therefore denied.
Plaintiffs also claim that Sheriff McGovern had the authority to supervise all personnel assigned
to DCCF, including the contracted doctor and nurses, to ensure compliance with policies and contracts,
and he failed to do so. Plaintiffs, however, have not provided any evidence to show that any officials
failed to comply with specific policies or contract provisions. To the extent plaintiffs are arguing that
Sheriff McGovern failed to ensure officials were executing proper procedures to protect inmate health,
that claim is sufficiently covered in Count II, inadequate training. Defendants’ motion for summary
judgment on Count III is granted.
b. Individual Capacity § 1983 Claims
“Personal-capacity suits seek to impose personal liability upon a government official for actions
he takes under color of state law.” Graham, 473 U.S. at 165. Unlike official capacity claims—which
require the entity itself be a “moving force” behind the deprivation—a personal-capacity claim requires
only that an official, who is acting under the color of state law, caused the deprivation of a federal right.
Id. at 166. Officials in personal-capacity suits may assert personal immunity defenses such as absolute
or qualified immunity. Id. at 166–67 (finding that while absolute or qualified immunity is available in a
personal-capacity suit, the only defense available in an official-capacity suit is sovereign immunity.). A
judgment in a personal capacity suit is against only the individual defendant and not the entity that
employs him. Id. at 168.
While supervisors may be liable for a subordinate’s constitutional deprivations under certain
circumstances, generally § 1983 does not recognize “strict supervisor liability.” Fogarty v. Gallegos,
523 F.3d 1147, 1162. Individual capacity claims must be based on “personal involvement in the alleged
-15-
constitutional violation.” Id. Supervisory liability only applies if an affirmative link exists between “the
supervisor’s personal participation, his exercise of control or direction, or his failure to supervise.” Id.
Plaintiffs bring the same § 1983 claims against Sheriff McGovern and Undersheriff Massey in
their individual capacities. Plaintiffs have not shown Sheriff McGovern was personally involved in the
constitutional violations at issue or shown an “affirmative link” to render him liable for failure to
supervise. Summary judgment as to any claims against Sheriff McGovern in his individual capacity is
therefore granted.
i.
Qualified Immunity
Plaintiffs seem to claim Undersheriff Massey is liable in his individual capacity based on his role
as Corrections Division Undersheriff.
Plaintiffs provide evidence that Undersheriff Massey was
responsible for developing, approving, implementing, and overseeing any policies or procedures at
DCCF dealing with inmate medical care. Plaintiffs have not shown any other conduct that would make
Undersheriff Massey personally liable for Hammers’s death. Defendants argue Undersheriff Massey is
entitled to qualified immunity, because the law was not clearly established that any of his actions violated
the constitution.
Qualified immunity recognizes “the need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the vigorous exercise of official authority.”
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). It protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
When a defendant has moved for summary judgment based on qualified immunity, the court
must “view the facts in the light most favorable to the non-moving party and resolve all factual disputes
and reasonable inferences in its favor.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014).
A defendant is entitled to qualified immunity unless the plaintiff can show “(1) a reasonable jury could
-16-
find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of
the defendant’s conduct.” Id. The Supreme Court has held a court has the discretion to consider “which
of the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In distinguishing between municipal and individual liability, the United States Supreme Court
has held that it is possible to find municipal liability while still granting qualified immunity to an official
for the same conduct because:
The innocent individual who is harmed by an abuse of governmental authority is assured
that he will be compensated for his injury. The offending official, so long as he conducts
himself in good faith, may go about his business secure in the knowledge that a qualified
immunity will protect him from personal liability for damages that are more appropriately
chargeable to the populace as a whole. And the public will be forced to bear only the costs
of injury inflicted by the “execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.
Owen v. City of Indep., Mo., 445 U.S. 622, 657 (1980) (emphasis added). It is therefore reasonable to
find Undersheriff Massey is entitled to qualified immunity for his personal actions as Corrections
Division Undersheriff so long as he was acting in good faith.
The court therefore will first address whether the law was clearly established that Undersheriff
Massey violated Hammers’s constitutional rights by implementing allegedly inadequate policies
regarding inmate medical care.
The relevant, dispositive inquiry in determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). For a right to be clearly established, the “contours of the
right must be sufficiently clear that a reasonable official would understand that what he is doing violates
that right.” Id. Determining when a law is clearly established ordinarily requires “a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts must
-17-
have found the law to be as plaintiff maintains.” Booker, 745 F.3d at 427. The Tenth Circuit has adopted
a sliding scale approach to determine when law is clearly established. Id. Under the sliding scale
approach, “the more obviously egregious the conduct in light of prevailing constitutional principles, the
less specificity is required from prior case law to establish the violation.” Id.
While there is an affirmative duty to provide adequate medical care to inmates, this duty requires
only that government “make available to inmates a level of medical care which is reasonably designed
to meet the routine and emergency health care needs of inmates.” Ramos v. Lamm, 639 F.2d 559, 575
(10th Cir. 1980). Where a prison is providing “an adequate level of medical care by its own chosen
means, the court should not impose its own notion of ‘enlightened,’ preferred medical policy.” Smith v.
Bd. of Cnty. Comm’rs of Cnty. of Lyon, 216 F. Supp. 2d 1209, 1224 (D. Kan. 2002).
While it is indeed clearly established that correctional facilities must provide adequate medical
care to its inmates, it is not “clearly established”—for purposes of qualified immunity—that Undersheriff
Massey’s policies and procedures violated this right. Qualified immunity is designed to protect officials
who exercise their discretion—and while adequate health care is mandated, there is no indication
Undersheriff Massey knowingly violated the law while approving and implementing medical procedures
and policies for DCCF or acted in bad faith when doing so. For these reasons, the court grants
Undersheriff Massey qualified immunity for any claims against him in his individual capacity.
c. State Claims
Plaintiffs also bring claims under state law for Wrongful Death and Negligence. Plaintiffs claim
defendants caused Hammers’s death by failing to exercise reasonable and ordinary care, skill, and
diligence in devising an adequate health care delivery system, in arranging for the provision of adequate
medical/nursing services and medical record-keeping systems, in ensuring that Dr. Sale and VNA
complied with the terms of their contracts, and in implementing adequate DCCF policies and procedures
-18-
to protect inmates and facilitate access to care. Plaintiffs also claim defendants were negligent by
deviating from generally accepted and recognized correctional practices and customs.
Defendants move for summary judgment on the state claims on various grounds including
immunity under the Kansas Tort Claims Act. Plaintiffs did not respond to defendants’ arguments
regarding the state law claims.
Under the Kansas Tort Claims Act, “a governmental entity generally is liable to the same extent
as a private person ‘for damages caused by the negligent or wrongful act or omission of any of its
employees while acting within the scope of their employment.” Kastendieck v. Bd. of Cnty. Comm’rs of
Morris Cnty. Kan., 934 F. Supp. 387, 391 (D. Kan. 1996) (citing Kan. Stat. Ann. § 75-6103(a)). There
are several statutory exceptions to the general rule of liability. See Kan. Stat. Ann. § 75-6104.
Defendants argue the “discretionary function” exception and the “personnel policy” exception
immunize them from liability in this case. See Kan. Stat. Ann. § 75-6104(e),(d). Under the discretionary
function exception, a party is immune from liability if the claim is “based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
governmental entity or employee, whether or not the discretion is abused and regardless of the level of
discretion involved.” Kan. Stat. Ann. § 75-6104(e). The personnel policy exception exempts liability
for damages due to the “adoption or enforcement of, or failure to adopt or enforce, any written personnel
policy which protects persons’ health or safety unless a duty of care, independent of such policy, is owed
to the specific individual injured.” Kan. Stat. Ann. § 75-6104(d).
Whether a function is “discretionary” depends on the nature and quality of the act. Carl v. City
of Overland Park, Kan., 65 F.3d 866, 871 (10th Cir. 1995). “‘Discretion’ requires more than ‘the mere
exercise of some judgment,’ because judgment is exercised in nearly all endeavors; instead, a
discretionary function ‘must involve some element of policy formation.” Id. The discretionary function,
-19-
however, is not applicable in situations where a legal duty exists, if the duty was established by caselaw
or statute. Conrad v. Bd. of Johnson Cnty. Comm’rs, 237 F. Supp. 2d 1204, 1261 (D. Kan. 2002).
Therefore, a governmental entity cannot claim immunity if the conduct complained of violates a legal
duty.” Id. The personnel policy, on its face, also makes clear that immunity does not apply when a duty
of care exists. Kan. Stat. Ann. § 75-6104(d) (“. . . unless a duty of care, independent of such policy, is
owed to the specific individual injured.”).
Kansas law recognizes that a “county maintaining a jail owes a duty of care to the inmates housed
there.” Estate of Belden v. Brown Cnty., 261 P.3d 943, 961 (Kan. Ct. App. 2011). A county owes a duty
of reasonable care to inmates “because they are not at liberty to meet their own needs and, thus, must
depend upon those who hold them.” Id. This reasonableness standard “allows individual facilities a
necessary flexibility in adopting procedures and practices to meet their obligations without undue burden
or cost.” Id. at 962. Importantly, no blanket immunity for penal institutions exists, signaling a
“legislative determination that those facilities should be subject to liability for otherwise actionable
negligence.” Id. at 962–63 (“Had the legislature meant to impose no greater duty or obligation than the
constitutional minimum, it would have adopted a specific tort claim exception . . . immunizing jails and
prisons for their treatment of inmates.”).
Because correctional facilities owe inmates a duty of care, the court finds the discretionary
function or personnel policy exceptions do not immunize defendants from liability. And because a legal
duty exists, the court finds that enough evidence exists that a reasonable jury could find defendants
breached their duty to “exercise reasonable and ordinary care for the life and health of the prisoner” and
to “furnish medical attention to a prisoner in custody who is in need of medical attention.” Thomas v.
Cnty. Comm’rs of Shawnee Cnty., 262 P.3d 336, 347 (Kan. 2011).
-20-
Defendants also argue that plaintiffs’ negligence claim is barred by the statute of limitations
because it is not “substantially similar” to the original action and is therefore not preserved under the
Kansas saving statute. Under Kan. Stat. Ann. § 60-518, a claim brought after the statute of limitations
is barred unless a second suit is filed and the saving statute, applies which requires:
1) The first action was commenced within due time,
2) The first action failed “otherwise than upon the merits,”
3) And the new action was commenced within six months of the failure.
Taylor v. Casey, 182 F. Supp. 2d 1096, 1102 (D. Kan. 2002). Defendants concede that these factors are
met, but argue that the saving statute only applies if the original action and the subsequent action are
substantially the same. See Taylor v. Int’l Union of Elec., Salaried, Mach., & Furniture Workers, 968
P.2d 685 (Kan. Ct. App. 1998) (“‘Where the parties and the relief sought in the new action are different
from those in the original action, the actions are not substantially the same, and the saving statute does
not apply.’”) (emphasis in original). Defendants argue that plaintiffs’ first action included a wrongful
death claim but not a claim for negligence. Defendants argue the negligence claim is not similar enough
to the wrongful claim. The court disagrees. The elements of the two claims are substantially similar
and originate from the same conduct. The savings statute applies and the negligence claim is not barred
by the statute of limitations.
Finally, defendants argue that plaintiffs are not entitled to punitive damages as there is no
evidence that they acted toward Hammers in a willful or wanton manner. Punitive damages may be
awarded if a plaintiff shows by clear and convincing evidence that “the defendant acted toward the
plaintiff with willful conduct, wanton conduct, fraud, or malice.” Kan. Stat. Ann. § 60-3702(c). The
term “wantonness” under Kansas law means “a reckless disregard of the rights of others.” Allman v.
Bird, 353 P.2d 216, 219 (Kan. 1960). “[T]o constitute wantonness the acts complained of must show
-21-
not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury
to others from his acts and to have refrained from taking steps to prevent the injury because indifferent
to whether it occurred or not.” Id. Because the court has already found a question for the jury exists as
to whether defendants acted with “reckless disregard” on the constitutional claims, the court finds it
appropriate for a jury to determine whether plaintiffs are entitled to punitive damages.
For these reasons, the court denies defendants’ motion for summary judgment on plaintiffs’ state
law claims of wrongful death and negligence.
IT IS THEREFORE ORDERED that defendants’ Motion for Summary Judgment (Doc. 208)
is granted in part and denied in part. Defendants’ motion as to Counts I and II against the BOCC and
Sheriff McGovern in their official capacities is denied. The motion is granted as to Count III against the
BOCC and Sheriff McGovern in their official capacities. The motion is granted as to Counts I, II, and
III against Undersheriff Massey in his official capacity. The motion is granted as to Counts I, II, and III
against Sheriff McGovern in his individual capacity. Summary judgment on Counts I, II, and III against
Undersheriff Massey in his individual capacity is granted. Defendants’ motion as to Count IV, Wrongful
Death and Count XI, Negligence is denied.
Dated March 28, 2018, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
-22-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?