Harper et al v. Daviess County, Kentucky et al

Filing 74

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 2/15/2018: The motion 49 for summary judgment by Green River Regional Mental Health-Mental Retardation Board d/b/a River Valley Behavioral Health and Rebecca Moorman is GRANTED as to Count VII for negligence/wrongful death. The motion 59 for summary judgment by Daviess County, Kentucky; David Osborne, individually and in his official capacity as the Daviess County Jailer; Chad Payne, individually and in his o fficial capacity as an officer, employee, and/or agent of the Daviess County Detention Center; and David Luke Boarman, individually and in his official capacity as an officer, employee, and/or agent of the Daviess County Detention Center is GRANTED. Defendants Daviess County, Osborne, Payne, and Boarman are DISMISSED from the action. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:15-cv-00068-JHM
LANA MICHELE HARPER, Administratrix
and Personal Representative of the Estate of
Chanson Spencer Morrow, Deceased, et al.

PLAINTIFFS

v.
DAVIESS COUNTY, KENTUCKY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on two motions for summary judgment. The first motion
has been brought by “the River Valley defendants:” Green River Regional Mental Health-Mental
Retardation Board d/b/a River Valley Behavioral Health (“River Valley”) and Rebecca
Moorman. (DN 49.) The second motion has been brought by “the County defendants:” Daviess
County, Kentucky; David Osborne, individually and in his official capacity as the Daviess
County Jailer; Chad Payne, individually and in his official capacity as an officer, employee,
and/or agent of the Daviess County Detention Center; and David “Luke” Boarman, individually
and in his official capacity as an officer, employee, and/or agent of the Daviess County
Detention Center. (DN 59.) These matters are ripe for decision.
I. BACKGROUND
This matter arises from the death of Chanson Spencer Morrow while an inmate at the
Daviess County Detention Center. Morrow was arrested on February 19, 2014 and charged with
first-degree assault after allegedly shooting his sister’s boyfriend in the chest. (Arrest Citation
[DN 59-3] at 2.) After being booked into the detention center, Deputy Jailer Joseph Stone had
Morrow complete the “Standard Medical/Mental Health” questionnaire, in which Morrow

indicated he suffered from depression but had never attempted suicide and was not currently
thinking about it. (Questionnaire [DN 59-5] at 2.) He was initially classified as a “high-risk”
inmate based upon the assault being a “high-profile crime” and rumors of other inmates wanting
to harm him. (Dep. Osborne [DN 59-9] at 21:10–22.) He was also placed on suicide watch
around 5:45 p.m. after Stone received a recommendation to do so from the Kentucky Jail Mental
Health Crisis Network. (Episode Report [DN 59-8] at 2–3.) While three detention center staff
members were dressing him in suicide prevention attire, Morrow stated, “Would you please just
shoot me in the head?” (Incident Report [DN 59-10] at 2.) Later that evening, from 11:45 to
11:52 p.m., Morrow was interviewed by defendant Moorman, an outpatient therapist employed
by defendant River Valley. Moorman determined that Morrow did not need to be on suicide
watch for the next 48 hours, as he denied having any suicidal intentions and reported having a
supportive family, to which he expected to return after getting out of jail the next day.
(Moorman Report [DN 59-13] at 2–5; Dep. Moorman [DN 59-12] at 37:7–38:16.) He was
removed from a suicide watch cell and taken to a high-risk cell based upon his initial
classification. (Dep. Jones [DN 59-20] at 10:1–9.)
As a high-risk inmate with no other individuals in his cell, Morrow was subject to checks
by detention center staff at least once every hour. (Dep. Osborne [DN 59-9] at 20:13–17.) At
the time of Morrow’s death on February 20, defendant Boarman was responsible for checking
Morrow’s cell. (Dep. Boarman [DN 59-22] at 46:16–51:6.) Electronic records indicate that
Boarman conducted checks on Morrow at 3:11 p.m., 4:23 p.m., 4:54 p.m., and 5:33 p.m. (Id.;
Log Report [DN 69-1] at 1, 3–5.) The parties agree that surveillance footage also shows
Boarman having a conversation with Morrow at 5:42 p.m., as well as Morrow having a
conversation with another inmate at 5:47 p.m. and 5:50 p.m.

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Boarman’s next check of the cell occurred at 6:30 p.m. (Dep. Osborne [DN 59-9] at
56:10–16; Log Report [DN 69-1] at 6.) However, Boarman did not look into the cell; he used a
device provided to him by the detention center to create an electronic log of his visit to the cell,
but he never actually looked through the window of the cell to ensure that Morrow was not in
any distress. (Dep. Osborne [DN 59-9] at 54:7–18; Dep. Boarman [DN 59-22] at 60:8–14.) At
7:15 p.m., detention center staff members were alerted that Morrow was hanging from a sheet in
his cell. (Dep. Payne [DN 59-21] at 49:2–14.) Attempts were made to resuscitate Morrow, but
he ultimately died from his injuries. (Nurse’s Report [DN 59-7] at 2–3.)
Three plaintiffs have brought the present action: Lana Harper, as administratrix and
personal representative of the estate of Morrow; Ashley Lambert, as custodian and legal guardian
of O.K.M., a minor child of Morrow; and Jessica Peak, as custodian and legal guardian of
K.A.P., a minor child of Morrow. (Pls.’ Amend. Compl. [DN 11] at 1.) While they have
asserted federal and state-law claims against numerous defendants, the plaintiffs have conceded
many claims against the County defendants. (Pls.’ Response [DN 69] at 1–2.) The only claims
remaining are as follows: § 1983 deliberate indifference against Boarman (in his individual
capacity), Moorman, and River Valley (Count II); intentional infliction of emotional distress
against Moorman and River Valley (Count III); negligence/wrongful death against Boarman (in
his individual capacity) (Count IV), Moorman and River Valley (Count VII); and § 1983 failure
to train and supervise against River Valley (Counts V and VI.)1 Boarman has moved for
summary judgment as to all remaining claims against him (DN 59), and the River Valley

Based upon the plaintiffs’ concessions, the motion for summary judgment (DN 59) is GRANTED as to all claims
against Daviess County, David Osborne, and Chad Payne.

1

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defendants have moved for summary judgment as to the negligence/wrongful death claim.2 (DN
49.)
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
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The River Valley defendants’ motion for summary judgment only addresses the expert testimony requirements for
state-law negligence claims. Further, the plaintiffs’ response states that they interpret the motion as only seeking
summary judgment on the state-law negligence claim. (DN 64, at 2.) No reply was filed. Therefore, the Court
interprets the motion for summary judgment in the same manner as the plaintiffs and will only address Count VII.
As such, Counts II, III, V, and VI remain pending against the River Valley defendants.

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III. DISCUSSION
A. RIVER VALLEY DEFENDANTS
The Court begins with the motion by the River Valley defendants. They argue that
summary judgment is appropriate on the negligence/wrongful death claim, as the plaintiffs have
failed to offer any expert testimony as to the standard of care Moorman and River Valley were
expected to meet. The plaintiffs allege that the River Valley defendants “owed Chanson Spencer
Morrow the duty of reasonable mental health and/or medical care,” and they “breached this duty
of care by negligently assessing Mr. Morrow as a moderate suicide risk.” (Pls.’ Amend. Compl.
[DN 11] ¶¶ 70–71.) These allegations pertain to whether the River Valley defendants breached a
duty of care borne out of their professional relationship with Morrow.

“In professional

negligence cases, the standard of care ‘is typically measured by the standard of conduct
customary in the profession under the circumstances.’” Lowe v. CSL Plasma Inc., 2016 WL
1090631, at *2 (W.D. Ky. Mar. 18, 2016) (quoting Boland-Maloney Lumber Co., Inc. v. Burnett,
302 S.W.3d 680, 686 (Ky. Ct. App. 2009)). “Establishing the standard of care typically requires
expert testimony.” Id. (citations omitted). The plaintiffs have offered no expert who will opine
as to the standard of care for mental health professionals conducting evaluations to determine the
risk of self-harm.
The plaintiffs argue that expert testimony is not required, as lay jurors can understand the
standard of care in this case and do not need to hear expert testimony in order to render an
appropriate verdict. See Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681 (Ky. 2003).
This argument is based upon the time stamps on Moorman’s report that recommended removing
Morrow from suicide watch for 48 hours, as it indicates she spent seven minutes interviewing
him before reaching this conclusion. (Moorman Report [DN 59-13] at 2–5.) The plaintiffs argue

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that lay jurors will be able to understand that Moorman could not have met the standard of care
for mental health professionals performing suicide evaluations in such a short time frame.
However, this argument confuses the duty owed to Morrow with whether it was
breached. Lay jurors can understand from Moorman’s testimony what she did in those seven
minutes and form an opinion on whether she could have actually accomplished what she says she
did in that time frame. But without expert testimony as to what was required or expected of her
in evaluating Morrow, there is no standard against which those jurors can compare her actions
and evaluate their propriety. The plaintiffs do not argue that evaluating individuals for their risk
of suicide is “within the scope of common experience of jurors,” and the Court does not believe
that the average juror would have the requisite experience to make expert testimony unnecessary.
Lowe, 2016 WL 1090631, at *2 (quoting Miller, 177 S.W.3d at 680). See generally Preventing
Suicide: A Technical Package of Polices, Programs, and Practices, Center for Disease &
Control (2017) (available at https://www.cdc.gov/violenceprevention/pdf/suicideTechnical
Package.pdf) (providing different methods and information on how to “Identify and Support
People at Risk”). As such, the Court finds that the lack of expert testimony on the standard of
care for mental health professionals conducting evaluations to determine the risk of self-harm is
fatal to the plaintiffs’ negligence/wrongful death claim against the River Valley defendants.
Accord Corbier v. Watson, 2017 WL 3116239, at *4 (S.D. Ill. July 21, 2017) (applying Illinois
law) (“Deciding whether or not to place someone on suicide watch is a matter of mental health
evaluation which requires the application of distinctively medical knowledge.

As such,

establishing the standard of care at trial will require expert testimony”). Therefore, the Court
will GRANT the motion for summary judgment by the River Valley defendants as to Count VII
for negligence/wrongful death.

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B. BOARMAN
1. § 1983 CLAIM
Boarman argues that he is entitled to summary judgment on Morrow’s § 1983 claim
alleging he was deliberately indifferent to Morrow’s medical needs. Under the Due Process
Clause of the Fourteenth Amendment, a pre-trial detainee has “a right to adequate medical
treatment that is analogous to prisoners’ rights under the Eighth Amendment.” Gray v. City of
Detroit, 399 F.3d 6112, 615–16 (6th Cir. 2005) (citing City of Revere v. Mass. Gen. Hosp., 463
U.S. 239, 244 (1983)). Thus, state actors violate a prisoner’s constitutional rights when they are
deliberately indifferent to the prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S.
97, 104–05 (1976). A prisoner’s “psychological needs may constitute serious medical needs,
especially when they result in suicidal tendencies.” Comstock v. McCrary, 273 F.3d 693, 703
(6th Cir. 2001). The Sixth Circuit has specifically stated that
the proper inquiry concerning the liability of a City and its
employees . . . under section 1983 for a jail detainee’s suicide is:
whether the decedent showed a strong likelihood that he would
attempt to take his own life in such a manner that failure to take
adequate precautions amounted to deliberate indifference to the
decedent's serious medical needs.
Barber v. City of Salem, 953 F.2d 232, 239–40 (6th Cir. 1992).
The Sixth Circuit’s opinion in Gray controls this case. In Gray, the court affirmed a
grant of summary judgment to a jail employee who was responsible for checking on an inmate
who ultimately committed suicide during his watch. In that case, the plaintiff had not shown that
the officer “actually knew that Gray was at risk of committing suicide . . . The only conceivable
way that any individual officer could have possibly concluded that Gray was a suicide risk was
to have obtained and appropriately pieced together the knowledge of every other officer involved
in the case.” Gray, 399 F.3d at 616. The same is true here: Boarman was on duty from 3:00
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p.m. to 11:00 p.m. on February 20, 2014, after Morrow had been taken off suicide watch,
removed from a suicide watch cell, and placed in a high-risk cell without the same property
restrictions as were previously in place. The plaintiffs have not offered any evidence that
Boarman was actually aware that Morrow was at risk of committing suicide, through either
receiving reports from other detention center employees or observing Morrow’s behavior. And
the knowledge of others in the jail that Morrow had previously been on suicide watch or made
statements indicating he might be suicidal cannot be imputed to Boarman, as “the test for
deliberate indifference is a subjective test . . . not an objective test or collective knowledge”
standard. Id. (quoting district court).
For the plaintiffs’ claim to succeed against Boarman, they must show that he was
subjectively aware that there was a “strong likelihood” Morrow would commit suicide. See
Horn v. Madison Cty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994) (“Knowledge of the asserted
serious needs or of circumstances clearly indicating the existence of such needs, is essential to a
finding of deliberate indifference”).

Such evidence is lacking in this case. Therefore, the

motion for summary judgement as to Count II against Boarman is GRANTED.
C. NEGLIGENCE/WRONGFUL DEATH
Boarman makes three arguments in favor of summary judgment as to the
negligence/wrongful death claim. First, he argues that he is entitled to qualified immunity.
However, the Court finds that Boarman is not immune from liability, as he was not performing a
discretionary act when was conducting cell checks and failed to look into Morrow’s cell.
“Qualified official immunity applies to the negligent performance by a public officer or
employee of . . . discretionary acts or functions. i.e., those involving the exercise of discretion
and judgment, or personal deliberation, decision, and judgment[.]” Yanero v. Davis, 65 S.W.3d

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510, 522 (Ky. 2001). However, an officer “is afforded no immunity from tort liability for the
negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of
others, or when the officer’s duty is absolute, certain, and imperative, involving merely
execution of a specific act arising from fixed and designated facts.” Id. (citations omitted).
While Boarman’s supervision of Morrow may not have been “purely discretionary or purely
ministerial,” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), his actions were much more
ministerial than discretionary. His job was to visit each cell, ensure that the inmate within was
not in distress, and log his visit electronically. There is little room for discretion or judgment in
that process. Instead, he was to execute specific duties, making his act ministerial and defeating
his assertion of qualified immunity. Accord Hedgepath v. Pelphrey, 520 F. App’x 385, 390–91
(6th Cir. 2013) (requirement that deputy jailers check on inmates every twenty minutes and make
sure they were conscious was ministerial); Slone v. Lincoln Cty., 242 F. Supp. 3d 579, 597–98
(E.D. Ky. 2017) (supervision of inmates is ministerial).
Second, Boarman argues that he breached no duty owed to Morrow. “The law imposes
the duty on a jailer to exercise reasonable and ordinary care and diligence to prevent unlawful
injury to a prisoner placed in his custody, but he cannot be charged with negligence in failing to
prevent what he could not reasonably anticipate.” Rowan Cty. v. Sloas, 201 S.W.3d 469, 479
(Ky. 2006) (quoting Lamb v. Clark, 138 S.W.2d 350, 352 (Ky. 1940)). However, “if a jailer
knows or has reason to believe that a prisoner might do harm to himself, he has a duty to exercise
reasonable care to assure that such harm does not occur.” Sudderth v. White, 621 S.W.2d 33, 35
(Ky. Ct. App. 1981). The “critical question” that arises from these cases, though, remains the
same as it is in “almost every negligence inquiry under the common law – namely, whether the

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harm caused by the defendant’s action was reasonably foreseeable.” Lawrence v. Madison Cty.,
176 F. Supp. 3d 650, 680 (E.D. Ky. 2016).
The plaintiffs have failed to produce evidence that Boarman breached any duty owed to
Morrow. There must be some evidence that Boarman had “reason to believe that [Morrow]
might do harm to himself,” and such evidence is lacking in this case. Sudderth, 621 S.W.2d at
35. As stated above, there is no evidence that Boarman was informed of Morrow having been on
suicide watch the previous day or his statements indicating he might harm himself. He knew
Morrow was in a “high-risk” cell, but that was due to the high-profile nature of his case and
rumors of threats made against Morrow by other inmates, not because of any risk of self-harm.
Other detention center staff members had lifted property restrictions that allowed Morrow to
wear clothing other than suicide prevention attire and have a bed sheet, giving Boarman no
reason to believe that Morrow should be monitored more closely. And there is no evidence in
the record that Morrow behaved in a way in front of Boarman that would have given him notice
of Morrow’s impending suicide attempt. Without some evidence that Boarman had a reason to
believe that Morrow may attempt to harm himself, the plaintiffs’ claim fails. Accord Criswell v.
Wayne Cty., 165 F.3d 26, *7 (6th Cir. 1998) (Table) (applying Kentucky law) (summary
judgment appropriate on negligence claim, as prisoner “neither expressed suicidal intent nor
exhibited suicidal behavior in the presence of Assistant Chief Hickman and the county jail
officials”); Durham v. Gooch, 2016 WL 552744, at *3 (Ky. Ct. App. Feb. 12, 2016) (defendant
jailer entitled to summary judgment on negligence claim, as record contained no evidence he had
reason to know prisoner was at risk of harming himself, even though prisoner had been on
suicide watch in the jail the year before, unbeknownst to defendant).

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There is no dispute that Boarman did not follow detention center procedures when he
failed to check Morrow’s cell at 6:30 p.m. But for the plaintiffs’ negligence claim to succeed,
they must prove more than Boarman’s failure to follow internal procedures. The plaintiffs must
show that the harm caused by not checking on Morrow was reasonably foreseeable. And in this
case, there are no facts to suggest it was. As such, the Court will GRANT Boarman’s motion for
summary judgment as to the negligence claim. The Court need not reach Boarman’s third
argument as to causation.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion for
summary judgment by Green River Regional Mental Health-Mental Retardation Board d/b/a
River Valley Behavioral Health and Rebecca Moorman (DN 49) is GRANTED as to Count VII
for negligence/wrongful death. IT IS FURTHER ORDERED that the motion for summary
judgment by Daviess County, Kentucky; David Osborne, individually and in his official capacity
as the Daviess County Jailer; Chad Payne, individually and in his official capacity as an officer,
employee, and/or agent of the Daviess County Detention Center; and David “Luke” Boarman,
individually and in his official capacity as an officer, employee, and/or agent of the Daviess
County Detention Center (DN 59) is GRANTED. Defendants Daviess County, Osborne, Payne,
and Boarman are DISMISSED from the action.

February 15, 2018

cc: counsel of record
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