PENN v. KNOX COUNTY et al
Filing
108
ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT granting in part and denying in part 89 Motion for Summary Judgment; granting 103 Motion for Leave to File By JUDGE NANCY TORRESEN. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CATHY PENN, in her capacity as )
guardian of Matthew Lalli,
)
)
Plaintiff,
)
v.
) Civil No. 2:11-cv-00363-NT
)
KNOX COUNTY, et. al.,
)
)
Defendants.
)
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendants’ Motion for Summary Judgment, ECF No.
89, on all counts of the First Amended Complaint. The Plaintiff’s son Matthew Lalli
was injured when he attempted suicide while in custody at the Knox County Jail.
Cathy Penn, in her capacity as guardian of Mathew Lalli, has sued the following
Defendants: Knox County; Knox County Jail; Knox County Sheriff’s Department;
John Hinkley, in his capacity as administrator of the Knox County Jail; Kathy
Carver, in her capacity as assistant administrator of the Knox County Jail; Donna
Dennison, in her capacity as Knox County Sheriff (together, the “Municipal
Defendants”); and corrections officers Angela Escorsio, Warren Heath III, Warren
Heath IV, Julie Stilkey, Christopher Truppa, Dane Winslow, Bradley Woll, and
Robert Wood. Penn seeks money damages under 42 U.S.C. § 1983 and the Eighth
and Fourteenth Amendments to the United States Constitution and under state
law. The Defendants claim that the Plaintiff cannot prove that Mr. Lalli’s injuries
were a result of any deliberate indifference on their part and that the Maine Tort
Claims Act bars all of the Plaintiff’s state law claims. For the reasons that follow,
the Court GRANTS the Defendants’ motion in part and DENIES the motion in
part.
FACTUAL BACKGROUND
The following facts are either undisputed or construed in the light most
favorable to the Plaintiff. See Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).
On Saturday, October 3, 2009, Matthew Lalli, a 22-year-old single father and
landscaper, was arrested for allegedly being intoxicated and for committing assault
in violation of the terms of his release. Pl.’s Resp. to Defs.’ Statement of Material
Facts ¶¶ 79-80, ECF No. 93 (“PRDSMF”); Defs.’ Reply to Pl.’s Statement of
Additional Material Facts ¶¶ 321-323, ECF No. 101 (“DRPSAMF”). That evening,
he was transported to Knox County Jail. PRDSMF ¶ 79. Lalli’s arraignment on
these charges was set for Monday, October 5, 2009, and he was to be held at the jail
until that time, after which a judge would determine whether to release him on bail
or hold him in jail pending the resolution of his case. See PRDSMF ¶¶ 122, 170;
DRPSAMF ¶¶ 361, 384-85.
Lalli’s mental health was tenuous. See DRPSAMF ¶¶ 323A-324.
He had
struggled with mental health and substance abuse problems for years. Id. Just
weeks earlier, in September, he was involuntarily committed to a psychiatric ward.
Id. at ¶ 325. He and his three-year-old daughter lived with his mother, Cathy Penn.
Id. at ¶ 323.
2
Saturday, October 3, 2009: Lalli’s Intake at the jail
When Lalli arrived at the jail, Sergeant Winslow1 was on duty as the jail’s
shift supervisor and Corrections Officer Stilkey was staffing the jail’s intake desk.
PRDSMF ¶¶ 81, 88. Sergeant Winslow and Officer Stilkey began processing Lalli at
around 7:20 p.m. DRPSAMF ¶ 320. Sergeant Winslow met Lalli in the jail’s
sallyport, escorted him into the jail’s intake area, and completed paperwork
documenting Lalli’s arrival. 2 PRDSMF ¶ 82. Once Lalli was inside, Officer Stilkey
For the sake of clarity, the Court refers to jail personnel by both their names and ranks. In
October 2009, Winslow’s rank at the Knox County Jail was Sergeant, though he was later demoted
to Corrections Officer. PRDSMF ¶ 81; DRPSAMF ¶ 336. As Winslow was a Sergeant at the time the
litigated events took place, the Court refers to him as Sergeant Winslow in this opinion.
1
The Defendants cite to certain facts supported only by Sergeant Winslow’s testimony. For
instance, only Sergeant Winslow testified that: (1) Lalli’s arresting officer told Sergeant Winslow
that he did not believe Lalli was suicidal; and (2) just after Lalli arrived at the jail, he told Sergeant
Winslow that he was not considering killing himself. PRDSMF ¶¶ 83-86.
The Plaintiff contends that the Court should disregard Sergeant Winslow’s self-interested
deposition testimony for purposes of summary judgment because the Plaintiff disputes it and it is
not corroborated by other record evidence. In support of her argument, the Plaintiff points to two
pieces of impeachment evidence: (1) an internal Knox County Jail document demonstrating that
Sergeant Winslow was disciplined in 2001 for falsifying log entries to show that he had conducted
inmate checks which he had not conducted; and (2) Sheriff Dennison’s deposition testimony that
Sergeant Winslow was demoted in 2010 for lying to jail investigators. DRPSAMF ¶ 336. The
Defendants respond, first, that the Plaintiff’s impeachment evidence is inadmissible under Federal
Rule of 608(b), and, second, that the Plaintiff cannot create a genuine dispute of material fact merely
by calling Sergeant Winslow’s credibility into doubt.
Rule 608(b) does prohibit a party from attacking a witness’s credibility by entering extrinsic
evidence of a specific instance of conduct against the witness, but it also empowers a party to attack
a witness’s credibility by asking the witness about specific instances of conduct on crossexamination, so long as those instances are “probative” of the witness’s “character for truthfulness or
untruthfulness.” Fed.R.Evid. 608(b). While the 2001 jail document and Sheriff Dennison’s testimony
about Sergeant Winslow’s 2010 demotion may both be inadmissible as “extrinsic evidence,” the
Plaintiff is permitted to ask Sergeant Winslow about both incidents on cross examination, as each is
highly probative of Sergeant Winslow’s character for untruthfulness. “[I]f the credibility of the
movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment
are shown, summary judgment should be denied and the case allowed to proceed to trial.” E.E.O.C. v.
Union Independiente de la Autoridad de Aceuductos y Alcantarillados de P.R., 279 F.3d 49, 56 (1st
Cir. 2002) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 2726, at 446 (3d ed. 1998) (internal quotation marks omitted).
Viewing the two incidents together, a jury might well decide Sergeant Winslow is an
unreliable narrator and decline to give his testimony any weight. As the Court must draw all
2
3
assumed responsibility for booking and processing him. PRDSMF ¶ 88. In
accordance with the jail’s standard procedures, Officer Stilkey filled out both a
suicide risk assessment form and a medical screening form for Lalli, asking him
questions prompted by the forms and recording his answers. PRDSMF ¶¶ 89, 92A.
The suicide risk assessment form has a short message at the top of the first
page instructing that “if the response given by the inmate is not a definite ‘Yes’ or
‘No’ the answer defaults to a ‘Yes’ answer.” DRPSAMF ¶ 330; Suicide Risk
Assessment 1. Defs.’ Exh. 2 at 1-3, ECF No. 88-17 (“Suicide Risk Assessment”).
Pertinent questions and Lalli’s answers, as Officer Stilkey memorialized
them, are as follows:3
2.) WITHIN THE LAST SIX MONTHS HAVE YOU LOST A JOB,
RELATIONSHIP, OR HAD A FAMILY MEMBER OR CLOSE
FRIEND DIE?
Lost a relationship
.
.
.
4.) ARE YOUR FAMILY AND/OR FRIENDS ASHAMED BY WHAT
HAS HAPPENED TO YOU AS A RESULT OF THIS ARREST?
yes
5.) ARE YOU CURRENTLY CONNECTED, OR HAVE YOU EVER
BEEN CONNECTED, WITH A COUNSELOR, CASEWORKER, OR
OTHER AGENCY FOR PSYCHIATRIC, SUBSTANCE ABUSE, OR
SOCIAL SUPPORT (specify current providers)?
yes mid coast mental health for social support
reasonable inferences in the Plaintiff’s favor, it must assign no weight to Sergeant Winslow’s
deposition testimony where it is disputed and uncorroborated.
The original punctuation, spelling, and capitalization from both the form and Officer
Stilkey’s answers is preserved in all the reproduced excerpts below.
3
4
6.) HAVE YOU EVER BEEN ADMITTED TO A HOSPITAL FOR
PSYCHIATRIC OR EMOTIONAL REASONS?
yes Park Unit two week ago
.
.
.
9.) HAS ANYONE IN YOUR FAMILY, OR A CLOSE FRIEND,
ATTEMPTED OR COMMITTED SUICIDE? (spouse, parent, friend,
lover, other)
2 close friends committed suicide 3 years ago
10.) HAVE YOU EVER ATTEMPTED SUICIDE? (If yes, When?)
2 years ago ran into legde 70 miles Per hr
11.) HAVE YOU EVER CONSIDERED SUICIDE? (If yes, When?)
yes 1 week ago
12.) ARE YOU CURRENTLY FEELING LIKE KILLING YOURSELF?
not sure feels that his life is over
.
.
.
14.) DO YOU HAVE THINGS TO LOOK FORWARD TO IN THE
NEAR FUTURE?
yes has a daughter 3 yrs old
PRDSMF ¶ 90; DRPSAMF ¶ 328; Defs.’ Exh. 2 at 1-3, No. 88-17 (“Suicide Risk
Assessment”).4
A model suicide risk assessment form contained within the jail’s training materials uses a
similar series of yes/no questions and assigns weight to the answers on a 42-point scale to determine
the level of supervision an inmate requires. DRPSAMF ¶ 313; Pl.’s Exh. JJ, ECF No. 94-9. Under the
scale, a score of 15 or more points requires the Jail to provide one-on-one observation of the inmate
and to conduct a mental health evaluation within one hour. Pl.’s Exh. JJ. When Lalli’s answers are
applied to this form, his risk of suicide rates at 20 points. See Pl.’s Exh. JJ; DRPSAMF ¶ 328.
4
5
Next, Officer Stilkey documented her own observations of Lalli on the form.
The following excerpt shows questions from the form and Officer Stilkey’s answers:
15.) DOES THE ARRESTING OR TRANSPORTING OFFICER
BELIEVE THAT THE INMATE IS CURRENTLY A SUICIDAL
RISK?
is very depressed I don’t think he would if he talks to someone I think
he’d be ok
.
.
.
18.) INDIVIDUAL SHOWS SIGNS OF DEPRESSION, ANXIETY,
FEAR, ANGER, EMBARASSMENT OR SHAME (crying, flat
emotions, pacing, yelling, etc)
yes very upset he disappointed his daughter
19.) INDIVIDUAL IS ACTING STRANGE (hearing or seeing things
not there, disoriented, unable to focus, unintelligible or confused
speech)
unable to focus for very long
DRPSAMF ¶ 329; PRDSMF ¶ 92A; DRPSAMF ¶ 329. Suicide Risk
Assessment 3.
Next, the form provides somewhat ambiguous instructions about what
actions the jail should take in response to the detainee’s answers and the officer’s
observations:
If the questions above are answered in the following manner:
A: Yes to question 12, 13 AND/OR:
B: Yes to (3) or more questions on the suicide assessment5
The form itself is logically inconsistent. Presumably a “yes” response to the question asking
whether the inmate has things to look forward to would lower the risk of suicide. It is clear however,
5
6
THE INMATE WILL BE PLACED ON “OBSERVATION” STATUS,
SHIFT SUPERVISOR IS TO BE NOTIFIED AND REVIEW THIS
QUESTIONNAIRE, UPON DOING SO HE/SHE WILL MAKE THE
FINAL DECISION ACCORDING TO POLICY OF ACTION TO TAKE.
IF ARCH MENTAL HEALTH6 IS ON DUTY, THEY WILL BE
NOTIFIED OF SITUATION.
IF ARCH MENTAL HEALTH IS OFF DUTY, (MCMH) CRISIS WILL
BE REQUESTED
Suicide Risk Assessment 4.
A final portion of the form calls for the booking officer to indicate with
checkmarks which of five levels of intervention the detainee received. Common jail
practice dictated that it was the shift supervisor’s responsibility to fill out this
section:
NO INTERVENTION / GENERAL POPULATION
BAILED / RELEASED
PLACED ON WELFARE WATCH
PLACED ON SUICIDE WATCH STEP 1
PLACED ON SUICIDE WATCH STEP 2
DRPSAMF ¶ 331; Suicide Risk Assessment 4-5. Neither Officer Stilkey, the booking
officer, nor Sergeant Winslow, the shift supervisor, checked off any of the boxes.
that Lalli responded “yes” to well more than three questions where a “yes” answer would indicate a
higher risk of suicide.
6
In October of 2009, the Jail had a contract with Allied Resources for Correctional Health
(ARCH) to provide certain mental health services. PRDSMF ¶ 73; DRPSAMF ¶ 285. Under the
contract, ARCH was required to provide a licensed social worker (an LSC) two days a week, for five
hours a day, and a licensed clinical professional counselor (an LCPC) for one day a week, also for five
hours. DRPSAMF ¶ 285. While on the premises, the LSC and the LCPC visited inmates only if jail
officials requested they do so or if jail officials placed an inmate on welfare or suicide watch.
PRDSMF ¶ 102-03; DRPSAMF ¶ 287. Jail officials were instructed to call Mid-Coast Mental Health
(MCMH) if they encountered a mental health emergency when ARCH personnel were not on site.
PRDSMF ¶ 75; DRPSAMF ¶ 288.
7
This form is signed and dated October 3, 2009, at 8:48 p.m., next to a line for the
shift supervisor’s signature. Suicide Risk Assessment 5.
Officer Stilkey then moved on to the next phase of the intake process:
completing the jail’s inmate medical assessment form. DRPSAMF ¶ 332. During
this step, Lalli told Officer Stilkey that he suffered from attention deficit
hyperactivity disorder, obsessive compulsive disorder, depression, major anxiety
disorder, and alcoholism and that he was using Oxycodone and Adderall.
DRPSAMF ¶ 333. He also again informed her that he had attempted suicide once
before. DRPSAMF ¶ 333.
Lalli’s suicide risk assessment and medical assessment worried Officer
Stilkey. DRPSAMF ¶ 334. As a result, after completing the forms, Officer Stilkey
called Sergeant Winslow, who was in another part of the jail. PRDSMF ¶ 93;
DRPSAMF ¶ 334. “[Y]ou need to look at this,” Officer Stilkey told him. DRPSAMF
¶ 334.
Shortly afterwards, Sergeant Winslow came down to the intake area and
reviewed the intake screening forms, reading each of the questions and answers.
PRDSMF ¶ 94. He decided to place Lalli on “welfare watch,” which required staff to
make separate log entries regarding Lalli’s condition when they conducted their
regular fifteen-minute checks of his cell and ensured that a mental health care
worker would speak with Lalli the next time one was scheduled to visit the jail.
PRDSMF ¶¶ 100-103; DRPSAMF ¶¶ 337, 339-340. No mental health care worker
visited the jail’s premises until Tuesday, October 6th, three days later. DRPSAMF ¶
8
340. Sergeant Winslow also decided to move Lalli into Cell 135. PRDSMF ¶¶ 101,
105.
To understand the significance of the placement in Cell 135, some description
of the jail’s physical layout is necessary. The inmate entrance leads into a hallway,
which opens up into the jail’s intake area, a room ringed by several jail cells.
Stevens Decl. Exh. BB, ECF No. 94-1 (“Jail Floor Plan”). Within the intake area is
an intake desk that faces Cells 111 and 112, the holding cells where new or
returning inmates are housed, often two or more to a room, pending processing.
DRPSAMF ¶ 268; Jail Floor Plan. Past the intake desk and opposite the hallway
leading from the jail’s entrance is a cluster of several more cells, including the jail’s
two suicide-prevention cells, Cells 124 and 127. DRPSAMF ¶¶ 271-72, 274; Jail
Floor Plan. Unlike a regular cell, these cells are stripped of objects a detainee could
use to harm himself. DRPSAMF ¶¶ 270-71. Cell 124 is the larger of the two suicideprevention cells, and the only one that officers can observe directly from the intake
desk. DRPSAMF ¶¶ 271-72, 274-75. Additionally, the jail stores a “suicide smock,” a
garment used to restrain detainees at risk of harming themselves, near the intake
desk. DRPSAMF ¶ 296A.
Behind the intake area are several more cells, including three cells which
share a common day room: Cells 134, 135 and 136. PRDSMF ¶ 101A; DRPSAMF
¶ 277; Jail Floor Plan. Officers sitting at the intake desk can hear people in these
cells if they make a loud noise, but they have only a partial view into the day room
adjoining these cells and they have no view into Cell 135 itself. PRDSMF ¶¶ 208,
9
218; DRPSAMF ¶¶ 279-80. Finally, Cell 135 is not stripped of objects a detainee
could use to harm himself. DRPSAMF ¶¶ 403A, 405. For instance, it contains sheets
and bedding which a detainee could potentially fashion into a makeshift noose.
PRDSMF ¶ 224-26; DRPSAMF ¶¶ 403A, 405.
Lalli was first moved into Cell 135 at some point after 8:05 p.m. PRDSMF
¶ 92A. Thereafter, according to entries in the jail’s welfare watch log, Officer Stilkey
checked on Lalli every fifteen minutes from 8:30 p.m. until 12:15 a.m., except for
two intervals where another corrections officer performed the checks.7 PRDSMF
¶¶ 105-06; Defs.’ Exh. 2 at 1-2, ECF No. 88-18 (“Welfare Watch Log”). Officer
Stilkey’s log entries indicate that, in each instance, Lalli was simply sleeping on his
bed when she checked on him, posing no apparent threat to himself.
PRDSMF ¶ 106.
Sunday, October 4, 2009
At 12:15 a.m. on October 4, 2009, Officer Stilkey was relieved of her post in
the intake wing and transferred to another area of the jail. PRDSMF ¶ 105. Both
Officer Stilkey and Sergeant Winslow went off duty almost six hours later, at 6:00
a.m., and neither had any further contact with Lalli. PRDSMF ¶ 107.
The Plaintiff argues that a reasonable jury could conclude that all or some of these checks
did not actually occur, pointing to various pieces of evidence which suggest that the jail’s log books
are unreliable. PRDSMF ¶¶ 105-07; DRPSAMF ¶ 341. This argument falls short. While there is
some evidence that some corrections officers at the jail falsified log entries over the decade preceding
Lalli’s injuries, see DRPSAMF ¶ 341, the Plaintiff provided no evidence that Officer Stilkey was
responsible for falsifying log entries or that Officer Stilkey had a character for untruthfulness. Cf.
supra note 2 (discussing Sergeant Winslow falsification of log entries and character for
untruthfulness). Accordingly, Officer Stilkey’s testimony that she performed regular checks on Lalli
on the evening of October 3rd and entered them into the Welfare Watch Log remains uncontroverted
and is fairly considered on summary judgment. PRDSMF ¶ 105.
7
10
Corrections Officer Warren Heath IV came on duty as the jail’s intake officer
at 12:25 p.m. that afternoon. PRDSMF ¶ 108. Officer Heath IV observed Lalli and
made entries about his condition approximately every fifteen minutes from 12:30
p.m. until 5:45 p.m. PRDSMF ¶ 108-09. For each of these entries, Officer Heath IV
simply wrote that Lalli was “all set.” PRDSMF ¶ 110.
Monday Morning -- October 5, 2009
The following morning, at approximately 6:00 a.m., Officer Heath IV again
assumed post as the jail’s intake officer. PRDSMF ¶ 116. Just before 7:00 a.m.,
Officer Heath IV had a troubling encounter with Lalli, which he later documented
in the jail’s intake/release log: “while moving inmate Wood, inmate Matthew Lalli
told me that he has sole custody of his daughter and that if he were not allowed to
be on the outside then it would be better if he wasn’t alive at all.” PRDSMF ¶ 118.
Officer Heath IV made a separate entry about the encounter in the Welfare Watch
Log: “Lalli told me he was not doing well and losing his mind.” PRDSMF ¶ 119.
Concerned, Officer Heath IV decided to call the shift supervisor on duty, Corporal
Bradley Woll, to let him know about Lalli’s comments. PRDSMF ¶ 123; DRPSAMF
¶ 346.
After speaking with Officer Heath IV, Corporal Woll decided that he needed
to speak personally with Lalli to determine whether to “bump him up” to a higher
watch level. DRPSAMF ¶¶ 346-47. Corporal Woll told Officer Heath IV to keep an
eye on Lalli until he could get down to Lalli’s cell to evaluate him personally.
PRDSMF ¶ 124.
11
About an hour later, Corporal Woll spoke with Lalli for about five to ten
minutes. PRDSMF ¶¶ 118, 126-29; DRPSAMF ¶ 348. During their conversation,
Corporal Woll noticed that Lalli was getting anxious about his upcoming
arraignment. DRPSAMF ¶ 349. Corporal Woll asked Lalli if he had anything to look
forward to; Lalli responded that he had his daughter. PRDSMF ¶ 132. When
Corporal Woll asked Lalli if he needed to see a mental health care worker, Lalli
replied that he would be okay as long as he was released and was able to see his
child. PRDSMF ¶¶ 133-34. Corporal Woll concluded that Lalli would be safe as long
as he was released, but that there could be a problem if Lalli was held. PRDSMF
¶ 136; DRPSAMF ¶ 350. Corporal Woll made a mental note to review Lalli’s
situation that afternoon. DRPSAMF ¶ 351.
Between 8:00 a.m. and 12 p.m., the Welfare Watch Log reflects that Officer
Heath IV checked in on Lalli every fifteen minutes, noting at each visit that Lalli
was “all set.” PRDSMF ¶ 146. At 12:07 p.m., the jail’s intake/release log indicates
that Corrections Officer Angela Escorsio took over from Officer Heath IV as intake
officer. DRPSAMF ¶ 358. As Officer Escorsio arrived to take over the post, Officer
Heath IV told her that Lalli had been upset that morning and that he was on
welfare watch. DRPSAMF ¶ 359. Corporal Woll also spoke with Officer Escorsio
about Lalli’s interactions with Officer Heath IV and instructed Officer Escorsio to
keep an eye on Lalli. DRPSAMF ¶ 360.
12
October 5, 2009 -- Transport to the Arraignment
Between noon and 12:30 p.m., jail staff assembled nine detainees, six men
and three women, in the intake area to prepare them for their trip to the Knox
County District Court for court appearances. DRPSAMF ¶ 361. The group included
Lalli and several other inmates who have been deposed in relation to this suit.
DRPSAMF ¶¶ 363, 375-76, 379, 382.
Correction Officers Warren Heath III, Christopher Truppa, and Robert Wood
served as the jail’s transport officers, charged with driving the nine detainees to and
from the Knox County District Court, a mile-and-a-half trip that takes from two to
four minutes. PRDSMF ¶¶ 150, 158. Shortly after noon, the transport officers drove
two vans into the jail’s sallyport and joined Officer Escorsio in the intake area.
PRDSMF ¶ 153. One inmate testified that at some point after the transport officers
entered the jail’s intake area but before they loaded the inmates onto the vans, Lalli
began “really freaking out,” saying “I need my medication or I need to get the hell
out of here” and “I have got a newborn kid and I need to get out of here,” loud
enough for the corrections officers in the room to hear. DRPSAMF ¶ 364. According
to the inmate, at least two corrections officers in the intake area told Lalli to “settle
down” and to “calm down.” DRPSAMF ¶ 364.
The transport officers placed the inmates into restraints and then moved the
six men into one van and the three women into another. PRDSMF ¶ 158B. Officer
Wood drove the men while Officers Truppa and Heath III drove the women.
PRDSMF ¶¶ 156-158B. The men’s van has a partition between the cab and the
13
passenger compartment. PRDSMF ¶ 155. Jail officials typically leave the partition’s
slider window open to make it easy to communicate with the inmates. DRPSAMF
¶ 367. According to one inmate present, Lalli made various threats to hurt himself
during the trip from the jail to the courthouse, saying “I need my medication” and
“if I don’t get the hell out of here I’m going to hurt myself, kill myself.” DRPSAMF
¶ 366.
October 5, 2009 -- The Arraignment
Once the vans arrived at the courthouse, the three transport officers escorted
the inmates into the courtroom, seating them in its dock area. PRDSMF ¶ 159. The
dock area has two rows of benches facing the well of the court, perpendicular to both
the judge’s bench and the attorneys’ tables. PRDSMF ¶ 159; DRPSAMF ¶ 368; Pl’s
Exh. RR, ECF No. 94-17 (sketch of the courtroom’s layout). Officers Truppa and
Heath III sat with the inmates, and Jeremy Pratt, Lalli’s attorney, sat at the table
closest to them. PRDSMF ¶ 160; DRPSAMF ¶¶ 369-370. Meanwhile, Assistant
District Attorney Lindsay Jones sat at the table furthest from the inmates and
Officer Wood stood near her side. PRDSMF ¶ 160; DRPSAMF ¶¶ 369-70.
At one point before the judge took the bench, Attorney Pratt spoke with Lalli
about his case. DRPSAMF ¶ 372. The conversation grew animated enough that
ADA Jones and Officer Wood could hear parts of it from where they were situated,
roughly twenty feet away. PRDSMF ¶ 162; DRPSAMF ¶ 372. Officer Wood testified
that he heard Lalli say “it’s over,” but was not able to hear the rest of the
conversation. DRPSAMF ¶¶ 162-64. ADA Jones testified that Lalli told his attorney
14
that “if he was not allowed to bail out . . . then he didn’t have anything to live for.”
DRPSAMF ¶ 372. As Officer Wood recalled, he then turned to ADA Jones and said
“if he continues to make a comment like that he may find himself going back to jail
and being put in a turtle suit.”8 PRDSMF ¶ 165. ADA Jones also recalled Officer
Wood making a similar comment. DRPSAMF ¶ 373. Numerous inmates testified
that Lalli made repeated and loud statements before and after the arraignment that
he wanted to kill himself and would kill himself if he were not released on bail.
DRPSAMF ¶¶ 377-383.
During this time, Officers Truppa and Heath III remained in the docking
area with the other inmates. PRDSMF ¶¶ 160-61. As Officer Heath III recalled,
Lalli was upset, arguing and pleading with the judge to release him because he had
a sole custody of a young child and needed to care for her. PRDSMF ¶ 169. He also
testified that Lalli got more and more agitated as the exchange with the judge went
on, commenting that “it would be all be over” and that he would “just end it” if his
bail were denied. PRDSMF ¶ 169. Officer Truppa remembered the events similarly,
testifying that Lalli made comments to the judge along the lines of “this is no good,”
“I have to get out, and “this is going to wreck my life.” PRDSMF ¶¶ 170-71. By
contrast, the record is not entirely clear as to which parts of this exchange Officer
Wood witnessed. Once the judge entered the courtroom, Officer Wood was in and
out of the courtroom, bringing paperwork back and forth from the clerk’s window.
PRDSMF ¶¶ 167-68, 172, 178.
As the Plaintiff explains, “‘turtle suit’ is a slang term for a smock given to inmates who are at
risk of attempting suicide.” Elsewhere, the parties refer to such a suit as a “suicide smock,” which is
the term the court adopts. See DRPSAMF ¶ 296A.
8
15
Ultimately, the judge ordered that Lalli be held without bail. PRDSMF ¶ 177.
After the judge issued the ruling, Lalli became upset and started crying. DRPSAMF
¶ 384. As Lalli returned to the dock area, one witness testified, he was “screaming
hysterically and crying and threatening suicide.” DRPSAMF ¶ 385. This witness
recalled that after Lalli rejoined the other inmates, he said that he “might as well
just kill himself because he [couldn’t] go back to jail” and that he was “going to lose
everything.” DRPSAMF ¶ 386.
October 5, 2009 -- Lalli’s Transport Back to Jail
Next, the transport officers escorted the inmates out of the courthouse to the
jail’s vans. DRPSAMF ¶ 387. Lalli cried during the walk outside. DRPSAMF ¶ 387.
On the drive back to the jail, Lalli sat in front row of the van’s passenger
compartment, closest to Officer Wood, who was again driving. DRPSAMF ¶ 388.
Another inmate in the van testified that Lalli “kept saying he was going to kill
himself” throughout the short trip and that Lalli spoke loudly. DRPSAMF ¶¶ 38990.
The vans returned to the jail at about 2:35 p.m. and Officers Wood, Truppa,
and Heath III escorted the other inmates into the intake area. PRDSMF ¶ 188;
DRPSAMF ¶ 391. Inside, Officer Escorsio and Corporal Woll remained on duty.
PRDSMF ¶¶ 117, 193-95; DRPSAMF ¶¶ 392-93. Both were stationed in the intake
area to carry out administrative details related to the detainees’ return from court.
DRPSAMF ¶¶ 392-93, PRDSMF ¶¶ 196, 197.
16
October 5, 2009 -- Lalli’s Reprocessing into the Jail
When Lalli arrived in intake, he began “kicking” and “slamming around” the
area. DRPSAMF ¶ 394. As Lalli waited for jail officials to unshackle him and return
him to his cell, he made a number of loud threats to kill himself. DRPSAMF ¶ 396.
One inmate, who was housed at some distance in Cell 136, recalled that Lalli was
hollering, “I can’t take this, I can’t be here, . . . I feel like killing myself.” DRPSAMF
¶ 398.
The record is somewhat murky regarding whether anyone back at the jail
learned that Lalli had been making suicidal threats at the courthouse. While none
of the transport officers relayed this information to Corporal Woll or Officer
Escorsio, it is probable that one of the inmates did inform Escorsio. PRDSMF
¶¶ 189-91, 231, 233; DRPSAMF ¶ 399.
After removing the returning inmates’ restraints, Officers Wood, Truppa, and
Heath III left the intake area, drove the two vans out of the sallyport area, and
went upstairs to take care of other duties. PRDSMF ¶¶ 190-91. The record suggests
the transport officers took no other action related to Lalli after returning to the jail.
PRDSMF ¶¶ 190-91.
At approximately 2:52 p.m., a corrections officer strip-searched Lalli.
PRDSMF ¶ 200. Lalli was upset after the search and began to cry. PRDSMF ¶ 201;
DRPSAMF ¶ 400. Hoping to calm Lalli down, Officer Escorsio allowed him to make
a call from the phone next to the jail’s intake desk. PRDSMF ¶ 201; DRPSAMF
¶ 400. As the call began, Officer Escorsio heard Lalli speak about his daughter and
17
the denial of his bail. PRDSMF ¶ 201. Corporal Woll, who was also nearby, heard
Lalli say that he would rather die if he did not have his daughter. PRDSMF ¶ 206.
Corporal Woll was “worried” by what Lalli said during the call. DRPSAMF
¶ 401. Lieutenant Kathy Carver, the jail’s assistant administrator, happened to be
in the intake area at the time. PRDSMF ¶¶ 57, 207. She looked at Corporal Woll
and told him he needed to place Lalli “on a watch.” PRDSMF ¶¶ 57, 207;
DRPSAMF ¶ 402. Corporal Woll replied that he was going to place Lalli on a suicide
watch in Cell 124, one of the intake area’s suicide prevention cells, and that he was
going to restrain Lalli in a suicide smock. DRPSAMF ¶¶ 271, 402. Corporal Woll
told Lieutenant Carver that “he would have Lalli on that watch” “as soon as he got
the intake area cleaned up.” PRDSMF ¶ 207. Corporal Woll told Officer Escorsio
about his plan. PRDSMF ¶ 208. Officer Escorsio told Corporal Woll she also thought
Lalli should be moved from Cell 135 to a cell where he would be safe and where she
could talk to him. PRDSMF ¶ 209.
However,
Cell
124
was
currently
occupied
by
another
male
detainee. PRDSMF ¶ 211. Though the jail’s other suicide prevention cell, Cell 127,
was vacant, it shares a day room with Cell 126, which was occupied by a female
detainee. PRDSMF ¶ 212. Accordingly, to make room for Lalli, Corporal Woll
planned to move the female detainee out of Cell 126 and then move the male
detainee in Cell 124 into Cell 127. PRDSMF ¶ 210.
Nonetheless, at about 3:00 p.m., Officer Escorsio returned Lalli to Cell 135.
Officer Escorsio failed to take away Lalli’s bedding, and Lalli was not placed in a
18
suicide smock at that time. PRDSMF ¶ 217; DRPSAMF ¶ 403-05. Corporal Woll
was aware of and participated in the decision about Lalli’s temporary placement.
DRPSAMF ¶ 403A. Officer Escorsio secured Lalli’s two neighboring inmates in their
cells, allowing only Lalli access to the adjoining day room. DRPSAMF ¶ 403. Before
she left the area, Officer Escorsio told Lalli to “sit down” and “shut up” and warned
him that she would have to bring him “up front in the turtle suit” if he did not do as
he was told. DRPSAMF ¶ 404.
Next, Lalli made a call from the phone in the day room. DRPSAMF ¶ 406.
Lalli told the person on the other end of the line that he was going to kill
himself. DRPSAMF ¶ 407. Lalli then began pacing around the day room, screaming
“I’m going to fucking kill myself” as loud as if he were “hollering to somebody 75
yards away.” DRPSAMF ¶¶ 408-09. While Lalli was still in the day room, he spoke
with one of his neighboring inmates, telling him “he was going to kill himself”
because he did not have anyone to take care of his daughter. DRPSAMF ¶ 410.
After spending about ten to fifteen minutes in the day room, Lalli went into
Cell 135 and closed the door. DRPSAMF ¶ 411. Once inside, Lalli started kicking
his door,
throwing things around his cell and creating a lot of noise and
commotion. DRPSAMF ¶¶ 412, 363, 413.
Though Officer Escorsio testified that she conducted a welfare watch check on
Lalli at 3:15 p.m. and then returned to his cell shortly afterwards to check on him
again, one of Lalli’s neighboring inmates testified that he was “pretty sure” Officer
Escorsio did not return to Lalli’s cell at all, while his other neighboring inmate
19
recalled seeing Officer Escorsio return only about 20 or 25 minutes later, just to
holler into Lalli’s cell from outside for him to quiet down. PRDSMF ¶¶ 220-21;
DRPSAMF
¶ 415.
Lalli
stopped
making
noise
after
Officer
Escorsio’s
visit. DRPSAMF ¶ 416. Additionally, Corporal Woll testified that he saw Lalli at
least once after Officer Escorsio returned him to his cell as he walked the halls of
the jail. PRDSMF ¶ 222.
Just before 3:30 p.m., Officer Escorsio asked Corporal Woll to perform Lalli’s
upcoming welfare watch check for her. PRDSMF ¶ 223. When Corporal Woll went to
do the check, he stopped briefly to talk to another inmate who was requesting to
make a phone call. PRDSMF ¶ 224. Before he reached Cell 135, however, he noticed
a white sheet hanging from a divider pole. PRDSMF ¶ 224. Corporal Woll
immediately ordered the door be opened and called for assistance. PRDSMF ¶ 225.
Once inside, he found Lalli’s blue and seemingly lifeless body hanging from the
divider poll. DRPSAMF ¶ 417.
Corporal Woll and another corrections officer began performing chest
compressions and CPR on Lalli. PRDSMF ¶ 227. Before long, paramedics arrived
and removed Lalli from his cell. PRDSMF ¶ 227A; DRPSAMF ¶ 418. An ambulance
rushed Lalli to Eastern Maine Medical Center, in Bangor, Maine, where doctors
later diagnosed him with anoxic brain injury resulting from the suicide attempt.
PRDSMF ¶ 227A; DRPSAMF ¶ 419.
20
Jail Policies and Procedures Regarding Suicide Prevention
Sheriff Dennison, who had been sheriff since 2006, and Major Hinckley, who
had been the jail’s administrator since 2004, were the final policymakers at the jail.
PRDSMF ¶¶ 68-69, 71-72, 73A. The Defendants do not indicate whether Sheriff
Dennison has ever had instruction in suicide prevention, but Major Hinckley
attended an eight-hour course on suicide detection and prevention in 1989.
PRDSMF ¶ 70.
Lieutenant Carver, Assistant Jail Administrator, had been employed at the
jail since 1989 and was responsible for coordinating training of the jail’s personnel.
PRDSMF ¶¶ 57-58; DRPSAMF ¶ 266. Lieutenant Carver completed a basic
corrections course in 1990, which included training on suicide prevention. PRDSMF
¶ 59. Over the years, she completed several additional courses related to suicide
prevention, including a 1992 training on suicidal inmates, a 1993 training on
teaching suicide prevention in corrections, a 1995 training in developing and
implementing jail-based mental health services, additional trainings in 1995 and
1996 on mental illness in jail, and three courses on suicide prevention in 2001,
2002, and 2005. PRDSMF ¶¶ 60-67.
As of October 3, 2009, the jail had several written policies and procedures
addressing suicide, which could be found within the jail’s policy and procedure
manual. PRDSMF ¶¶ 235-236 and 238-238M. The jail’s staff is trained on the jail’s
policies and procedures, and copies of the policy and procedure manual are kept in
21
the jail’s control room and its intake room for officers to consult. PRDSMF ¶¶ 237237.
The jail’s policies and procedures require jail personnel to perform a suicide
inmates screening assessment of each incoming detainee. See PRDSMF ¶ 238; Defs.
Exh. 6, ECF No. 88-21 (instructing jail personnel to “thoroughly inspect” all inmates
“for signs of physical injury, mental illness, drug use, alcohol use and suicidal
intentions prior to accepting custody”); PRDSMF ¶¶ 238A and 238H; Defs. Exhs. 7,
ECF Nos. 88-22 and 14, No. 88-29 (instructing the booking officer to observe
inmates to determine whether they are “seriously depressed – having suicidal
thoughts,” to explain to inmates the procedures for obtaining medical attention, and
to provide all medical screening information to the jail’s physician). The intake
officer conducts the assessment using the Suicide Assessment Form discussed
earlier. See DRPSAMF ¶ 328; Pl’s Exh. 2, ECF No. 88-17.
The policies require jail personnel to classify all detainees into different types
of custody upon admission and to review this classification after 15 days, and again
every 90 days thereafter. PRDSMF ¶ 238B and Defs. Exh. 8, ECF No. 88-23. The
jail’s policies distinguish between two different “watch levels” for detainees who
poses risks to themselves. PRDSMF ¶¶ 101, 238E. Inmates on “suicide watch” are
to be constantly supervised and observations detailing the inmate’s behavior are to
be recorded. See PRDSMF ¶ 238D and Defs. Exh. 10, ECF No. 88-25.
By contrast, an inmate under a “welfare watch,” is only observed every ten to
fifteen minutes. PRDSMF ¶¶ 101, 238E. Common jail practice mandates that
22
corrections officers take two further courses of action with respect to any detainee
on welfare watch: (1) maintain a separate log documenting the detainee’s condition
at each of his fifteen-minute checks; and (2) ensure that the next time a mental
health care worker visits the jail, that worker speaks with the detainee. PRDSMF
¶¶ 100-03. The decision about whether to place a detainee on suicide watch or
welfare watch is left to the shift supervisor working when the detainee arrives.
DRPSAMF ¶¶ 295-96.
The jail also has a “Suicide Prevention Program” that states as its objective
that “[t]he Knox County jail Staff will take every precaution to avert suicide and
suicide attempts through an intensive program of assessment, detection,
supervision, and staff training.” The program lists its “elements” as:
(a) Intake screening to detect potential suicidal behavior.
(b) Training of mental health staff regarding the jail environment and
criminal justice system.
(c) Access to time[ly] assessment and treatment services, including
outpatient care, psychiatric inpatient services and detoxification
services.
(d) Staff and electronic supervision of inmates.
(e) Timely medical intervention.
(f) Re-evaluation of inmates following a crisis period.
(g) Environmental/architectural design conducive to reducing suicide
potential.
PRDSMF ¶ 238K; Defs.’ Exh. 17, ECF No. 88-32.
Suicide Prevention Training of the Individual Defendants
The jail’s policies require the Jail Administrator to “provide training for jail
staff in recognizing behavior requiring psychiatric services” and to “maintain
procedures for obtaining these services when jail staff feel the need is present.”
23
PRDSMF ¶ 238J; Defs.’ Exh. 16, ECF No. 88-27. In particular, “[a]ll full-time
certified correctional officers” are directed to “be provided annual training”
including training “in suicide prevention, detection and procedures.” PRDSMF
¶ 238M; Defs.’ Exh. 19, ECF No. 88-34. It is also the jail’s policy to maintain
documentation of the dates and subject-matter of trainings along with the names of
the personnel who attended. Id. The jail’s records indicate that it held suicide
prevention trainings in January 1989, June 1992, October 1992, March 1993, June
1993, September 1994, October 1995, June 2001, October 2001, August 2002,
December 2002, September 2005, August 2006, November 2006, December 2007,
January 2008, February 2008, and December 2008. Pl.’s Exh. U, ECF No. 93-22 (jail
suicide training records).
As noted in the following list, the individual defendants all had some training
in suicide prevention as of October 3, 2009, though none had received annual
trainings:
Corporal Escorsio received training on special needs inmates and principles of
suicide prevention in 2002; she completed a corrections course which included
training on suicide prevention in 2004; and in December 2007, she received
another training on suicide prevention. PRDSMF ¶¶ 3-5.
Officer Heath III completed a corrections course in 1989, which included training
on suicide prevention; in November 1991, he was an instructor for two trainings
on special management inmates; and in June 2001, he received additional
training on suicide prevention and defusing. PRDSMF ¶¶ 8, 10-11.
Officer Stilkey began working for the jail only six months prior to Lalli’s injuries.
Prior to this, in September 2007, she had completed a corrections course that
included training on suicide prevention; and in August and November 2006,
December 2007, and December 2008 she had received suicide trainings through
her former employment at the Waldo County Jail. PRDSMF ¶¶ 17-20.
24
Officer Truppa completed a corrections course in 1990, which included training
on suicide prevention, and he received additional training on suicide prevention
in October 1995, June 2001, August 2002, September 2005, November 2006, and
January 2008. PRDSMF ¶¶ 25-32.
Sergeant Winslow completed a corrections course in 1999, which included
training on suicide prevention, and he received additional trainings in suicide
prevention in June and October 2001, August 2002, September 2005, November
2006, and December 2007. PRDSMF ¶¶ 35-41.
Corporal Woll attended a corrections course in 2007 that included training on
suicide prevention; and he received suicide prevention trainings in November
2006 and December 2007. PRDSMF ¶¶ 43-45.
Officer Wood completed a corrections course in 1991, which included training on
suicide prevention; he received training on suicide prevention and recognition of
aberrant behavior in October 1992; he completed a course on teaching suicide
prevention in 1993; and he attended additional suicide prevention trainings in
June 1993, June 2001, August 2002, and January 2008. PRDSMF ¶¶ 47-55.
History of Suicide and Suicide Attempts at the Jail
In 2001, the Department of Corrections issued a report regarding the death of
an inmate at the jail, which noted the jail’s lack of timely suicide prevention
trainings. See PRDSMF ¶ 256A; Pl.’s Exh. X, ECF No. 93-25. Lieutenant Carver’s
performance appraisal that year9 references this report and notes that she was
responsible for staff training. Id. At the time of Lalli’s detention, the jail housed
between 70 and 74 inmates. PRDSMF ¶ 256B. Between January of 2007 and
October 3, 2009, the jail logged 26 “incidents of suicidal behavior.” DRPSAMF
¶ 316.
At that time Carver’s name was apparently “Kathy Wyman.” Neither of the parties clarifies
this point, though the Defendants do not deny that the performance appraisal is Carver’s. See
DRPSAMF ¶ 256A.
9
25
Spoliation of Evidence Doctrine
In addition to the favorable inferences to which the Plaintiff is entitled to
under the summary judgment standard, she argues that she is also entitled to the
benefit of an adverse inference because the Defendants destroyed evidence relevant
to her claims.
The facts relevant to this assertion are as follows. The Knox County Jail
operates two video cameras that capture footage of the jail’s intake area. DRPSAMF
¶ 326. The camera captures only images, not audio, and records only the jail’s main
holding area, not the detainees’ individual cells. DRPSAMF ¶ 327. As a matter of
routine data maintenance, the jail records over the footage captured by the camera
every seven to thirty days. DRPSAMF ¶ 327. After Lalli’s suicide attempt on
October 5, 2009, jail officials failed to take any action to preserve the footage
recorded during Lalli’s stay. DRPSAMF ¶ 327. As a result, the footage was recorded
over before the Plaintiff filed her suit. DRPSAMF ¶ 327.
Pointing to these facts, the Plaintiff contends that the court should apply the
“spoliation of evidence” doctrine, outlined in Gomez v. Stop & Shop Supermarket
Co., 670 F.3d 395 (1st Cir. 2012), and sanction the Defendants by drawing an
inference that the missing footage would have shown that the events that took place
in the intake area during Lalli’s time in custody support the Plaintiff’s claims.
In the Plaintiff’s responses to the Defendants’ statement of material facts,
she identified seven specific instances where the missing security-camera footage
might have refuted facts the Defendants claimed were uncontroverted: (1) that
26
Officer Stilkey performed welfare watch checks on Lalli beginning at 8:30 p.m.,
October 3, 2009 and ending at October 4, 2009, see PRDSMF ¶¶ 105-06, 239; (2)
that the welfare watch logs reflect that Lalli was quiet and compliant between 12:30
a.m. and 11:45 a.m. on October 4, 2009, see PRDSMF ¶¶ 107A, 239; (3) that the
welfare watch logs reflect that Lalli appeared okay between 6:00 p.m., October 4,
2009 and 6:00 a.m., October 5, 2009, see PRDSMF ¶ 115A, 239; (4) that Officers
Wood, Truppa and Heath III did not hear Lalli say he was going to kill himself after
they returned him to the jail’s intake area, see PRDSMF ¶ 191A; (5) that Officer
Escorsio did not observe Lalli’s severe distress after he returned to the jail from the
courthouse, see PRDSMF ¶¶ 201, 203; (6) that Officer Escorsio performed welfare
watch checks on Lalli at 3:00 p.m. and 3:15 p.m., see PRDSMF ¶¶ 220, 239; and (7)
that Officer Escorsio went back to Lalli’s cell a third time shortly after 3:15 p.m. See
PRDSMF ¶ 221.
Under the spoliation of evidence doctrine, “a trier of fact may (but need not)
infer from a party’s obliteration of evidence relevant to a litigated issue that the
contents of the evidence were unfavorable to the party.” Gomez v. Stop & Stop
Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012) (quoting Testa v. Wal-Mart
Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998)) (internal quotation marks and
original brackets omitted). The doctrine has two main rationales:
first, “that a
party who destroys a document (or permits it to be destroyed) when facing
litigation, knowing the document’s relevancy to issues in the case, may well do so
out of a sense that the document’s contents hurt his position,” Testa, 144 F.3d at
27
177; and second, that imposing sanctions “serves to deter litigants from destroying
relevant evidence prior to trial and to penalize a party whose misconduct creates
the risk of an erroneous judgment.” Booker v. Mass. Dep’t of Pub. Health, 612 F.3d
34, 46 (1st Cir. 2010).
Proponents of an inference based on spoliation must establish a two-part
evidentiary foundation. Id. First, they must “show that the party who destroyed the
[evidence] ‘knew of . . . the claim (that is, the litigation or the potential for
litigation.’” Id. (quoting Testa, 144 F.3d at 177).
Second, they must show “the
[evidence]’s potential relevance to that claim.” Testa, 144 F.3d at 177. Additionally,
“[a] key consideration in whether to impose sanctions for spoliation of evidence is
the ‘degree of fault of the offending party.’” Parlin v. Cumberland Cnty., No. 08-cv186-P-S, 2009 WL 2998963 at *2 (D. Me. Sept. 16, 2009) (quoting Collazo–Santiago
v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir. 1998)).
In the Plaintiff’s opposition to the Defendants’ motion and the Plaintiff’s
responses to the Defendants’ statement of material facts, she seems to be asking for
the Court to draw an adverse inference against five individual defendants: Officers
Stilkey, Wood, Truppa, Heath III, and Escorsio. However, the Plaintiff has failed to
present any evidence that these officers—nor the three other individual defendants
named in the complaint—played any role in the jail’s failure to preserve the intake
area security-camera footage. As this District has noted in two previous cases, “[i]t
would be inequitable to sanction a blameless party for another's spoliation of
evidence.” Parlin v. Cumberland Cnty., No. 08-cv-186-P-S), 2009 WL 2998963 at *2
28
(D. Me. Sept. 16, 2009); Driggin v. Am. Sec. Alarm Co., 141 F. Supp. 2d 113, 123 (D.
Me. 2000)). Furthermore, under the plaintiff-friendly summary judgment standard,
the Court is already adopting the Plaintiff’s version of events regarding the
disputed facts that pertain to Officers Wood, Truppa, Heath III, and Escorsio.
Accordingly, the Court declines to draw the requested inferences against any of the
individual defendants.
With respect to the Municipal Defendants, the Plaintiff has failed to establish
the relevance of the missing evidence to her claims. Plaintiff’s claim against the
Municipal Defendants is based on failure to train the jail’s staff adequately and on
giving the shift supervisor too much discretion to determine the type of watch on
which to place a troubled inmate. The Court fails to see how any evidence which
might have been on the intake area surveillance camera would be material to the
claims against the Municipal Defendants. The Court therefore declines to draw the
requested inferences against the Municipal Defendants as well.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, the Court shall grant summary
judgment “if the movant shows that there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In deciding a summary judgment motion, the court must “bear in mind that
not every genuine factual conflict necessitates a trial.” Martinez v. Colon, 54 F.3d
980, 984 (1st Cir. 1995). Instead, “[i]t is only when a disputed fact has the potential
29
to change the outcome of the suit under the governing law if found favorably to the
nonmovant that the materiality hurdle is cleared.” Id.
If the moving party will not bear the burden of proof at trial, the moving
party can make a prima facie case that it is entitled to summary judgment by either
submitting evidence that negates an essential element of the nonmoving party’s
claim or demonstrating that the nonmoving party’s evidence is insufficient to
establish an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317,
331 (1986) (White, J., concurring). The nonmoving party may defeat the movant’s
prima facie entitlement to summary judgment by demonstrating to the Court
specific facts in the record overlooked or ignored by the moving party that support
the essential elements of the party’s claim. Id. at 331-32; see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court “views the facts and draws all reasonable inferences in favor of
the nonmoving party.” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35
(1st Cir. 2011). However, the Court “afford[s] no evidentiary weight to ‘conclusory
allegations, empty rhetoric, unsupported speculation, or evidence which, in the
aggregate, is less than significantly probative.’” Tropigas de P.R., Inc. v. Certain
Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Rogan v.
City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)).
“[T]he ground rules for summary judgment leave ‘no room for credibility
determinations, no room for the measured weighing of conflicting evidence such as
the trial process entails, no room for the judge to superimpose his own ideas of
30
probability and likelihood (no matter how reasonable those ideas may be)’ on the
cold pages of the record.” Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175
(1st Cir. 2011) (quoting Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936
(1st Cir. 1987)). Furthermore, “courts must be exceptionally cautious” in taking
questions of state-of-mind away from the jury at summary judgment. In re
Varrasso, 37 F.3d 760, 764 (1st Cir. 1994).
DISCUSSION
A.
§ 1983 Claims Against Individual Defendants
1. Deliberate Indifference
Section 1983 of the Civil Rights Act allows United States citizens to bring a
claim for redress against any person acting under color of state law who causes a
deprivation of “rights, privileges, or immunities secured by the Constitution and
laws” of the United States. 42 U.S.C. § 1983. The statute provides plaintiffs a cause
of action and a vehicle to obtain federal court jurisdiction, but it does not provide
any substantive rights independent of those otherwise granted under federal law or
the United States Constitution. Roman-Oliveras v. P.R. Elec. Power Auth., 655 F.3d
43, 47 (1st Cir. 2011).
The Due Process Clause of the Fourteenth Amendment10 prohibits states and
their subdivisions from acting with deliberate indifference to a substantial risk of
“Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause
rather than the Eighth Amendment,” which contains the Cruel and Unusual Punishment Clause, as
they have not been convicted of a crime and thus are not subject to punishment. Burrell v.
Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002); see also City of Revere v. Mass. Gen. Hosp., 463 U.S.
239, 244 (1983). However, the Fourteenth Amendment provides pretrial detainees with protections
10
31
serious harm to the health of a pretrial detainee. Coscia v. Town of Pembroke, Mass.
659 F.3d 37, 39 (1st Cir. 2011). This includes the risk that pretrial detainees will
seriously harm themselves while in state custody. See Elliot v. Cheshire Cnty., N.H.,
940 F.2d 7, 10-12 (1st Cir. 1991).
To determine whether a Fourteenth Amendment violation has occurred, the
First Circuit applies the formulation of the “deliberate indifference” standard
announced in Farmer v. Brennan, 511 U.S. 825 (1994). Burrell, 307 F.3d at 7. To
succeed on a claim decided under this standard, the plaintiff must satisfy both
objective and subjective inquiries. Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484,
497 (1st Cir. 2011). First, he must show that the deprivation alleged was
“objectively, sufficiently serious.” Id. (internal citations and quotation marks
omitted). Second, he must show “that prison officials possessed a sufficiently
culpable state of mind . . . .” Id. (internal citations and quotation marks omitted).
To prevail in a deliberate indifference case involving a “failure to prevent
harm,” the objective prong requires the plaintiff to show that he was detained
“under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at
834.11 As this District has previously determined, “[t]here is no dispute, nor should
there be, that suicide is a serious harm under Farmer.” Martin v. Somerset Cnty.,
at least as great as the Cruel and Unusual Punishment Clause provides convicted prisoners. Revere,
463 U.S. at 244.
Both the Defendant and the Plaintiff refer to a triad of inmate suicide cases decided in the
early nineties in which the First Circuit used slightly different formulations for the risk of harm
inquiry. Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir. 1991) (“strong likelihood” formulation); Elliot
v. Cheshire Cnty., 940 F.2d 7, 10 (1st Cir. 1991) (“large risk” formulation); Manarite v. City of
Springfield, 957 F.2d 953, 956 (1st Cir. 1992) (“unusually serious risk” formulation). The Court
follows the formulations set forth in Farmer, which held that a plaintiff must demonstrate a
“substantial” risk of serious harm. See Farmer, 511 U.S. at 834.
11
32
387 F. Supp. 2d 65, 76 (D. Me. 2005) (internal citations omitted). Thus, where
officials fail to prevent a detainee’s suicide attempt, the objective inquiry focuses on
whether the individual was already a substantial suicide risk at the time the
defendant allegedly acted with deliberate indifference. See id.
Under the subjective prong, the plaintiff must show that the official in
question was aware of the “excessive risk to inmate health or safety.” Farmer, 511
U.S. at 837. Thus, the plaintiff must demonstrate not only that “the official [was]
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exist[ed],” but also that the official actually drew the inference. Id.
This does not mean, however, that the Court must rely on the self-serving testimony
of jail officials regarding what risks they were or were not aware of, or what
conclusions they did or did not reach. Id. at 842. Instead, the required subjective
proofs may be made “in the usual ways,” including by “inference from
circumstantial evidence.” Id. For example, “a fact finder may conclude that a[n] . . .
official knew of a substantial risk from the very fact that the risk was obvious,”
though the official may also present evidence to show that he or she “was unaware
of even an obvious risk.” Id. at 843-44.
Finally, the deliberate indifference standard also takes into account an
official’s response: a defendant may be found liable only if he or she “‘consciously
disregard[s]’ a substantial risk of serious harm” or “culpably ignores or turns away
from what is otherwise apparent.” Farmer, 511 U.S. at 839 (quoting the Model
Penal Code’s definition of criminal recklessness, Model Penal Code § 2.02(2)(c));
33
Alsina-Ortiz v. Laboy, 400 F.3d 77, 82 (1st Cir. 2005). Thus, an official who is aware
of a substantial risk of serious harm may be found liable if he “fails to take
reasonable measures to abate” the risk or “fail[s] to take appropriate mitigating
action.” Farmer, 511 U.S. at 847; Ramos v. Patnaude, 640 F.3d 485, 489 (1st Cir.
2011). By contrast, a similarly placed official may not be found liable if he
“‘respond[s] reasonably to the risk,’” whether or not the harm is avoided. Giroux v.
Somerset Cnty., 178 F.3d 28, 32 (1st Cir. 1999) (quoting Farmer, 511 U.S. at 844).
The First Circuit’s application of Farmer provides guidance as to how the
deliberate indifference standard applies in situations similar to this case. Where a
claim “concerns not the absence of help, but the choice of a certain course of
treatment,” the Court will find deliberate indifference only “where the attention
received is so clearly inadequate as to amount to a refusal to provide essential care.”
Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 163 (1st Cir. 2006) (internal
quotation marks and citations omitted). In Feeney, the First Circuit held that prison
medical officials were not deliberately indifferent where they initially treated a
prisoner’s foot pain with shoe inserts, pain medication, and physical therapy, all of
which failed to resolve the problem, rather than the custom-molded orthotics which
later proved effective. Id. at 160.
However, even an official who affirmatively
responds to a risk may be found deliberately indifferent if the response fails to
address the problem and instead appears to be an effort to “paper [the official’s] file”
or “lull [the inmate] into complacency.” Leavitt, 645 F.3d at 499. Accordingly, in
Leavitt, the First Circuit held that a medical official may have been deliberately
34
indifferent in treating an inmate with HIV where the official took some passive
action—ordering blood tests, gathering the inmate’s medical history, and reviewing
some of the inmate’s medical records—but consciously chose not to read a critical
report which would have revealed that the inmate’s viral load was unusually high
and the inmate required immediate medical attention. Id. at 488-90, 499. Finally,
where a claim involves an allegation that an official failed to communicate
information about a specific risk facing an inmate to other officials charged with
protecting that inmate, an official may be found deliberately indifferent if it was
within the official’s “scope of . . . responsibility” to transmit that information.
Giroux, 178 F.3d at 34. Accordingly, in Giroux, the First Circuit held that a shift
supervisor could be found deliberately indifferent where he failed to inform
corrections officers under his command that an inmate faced a threat of attack from
a particular group of inmates and those officers later placed the inmate in an
unguarded holding cell with a member of that group. Id.
a. Officer Stilkey
i.
The objective risk
There was a substantial risk that Lalli would attempt suicide when Officer
Stilkey and Sergeant Winslow admitted him into the jail on October 3, 2009. When
Officer Stilkey asked Lalli at intake whether he was “currently feeling like killing
[himself],” he replied that he was “not sure,” but believed that “his life [was] over.”
PRDSMF ¶ 90; DRPSAMF ¶ 328. In response to other queries, he offered that he
had attempted suicide about two years earlier, that he had been admitted to a
35
hospital for psychiatric treatment two weeks earlier, and that he had considered
killing himself one week earlier. PRDSMF ¶ 90; DRPSAMF ¶ 328. Additionally,
Lalli was crying on and off during his intake interview and, according to Officer
Stilkey’s subsequent written assessment, appeared “very depress[ed].” PRDSMF ¶
91; DRPSAMF ¶ 329.
The facts here are roughly in line with those of both Torraco, 923 F.2d 231,
and Elliot, 940 F.2d 7. In Torraco, the First Circuit held that a triable issue of fact
existed as to whether an inmate had an objectively “serious mental health need”
where he had attempted suicide twenty months earlier, assaulted a prison official
sixteen months earlier, and overdosed on THC pills five days earlier. Torraco, 923
F.2d at 235 n.4. In Elliot, the First Circuit held that a triable issue of fact existed as
to whether there was an objectively “large risk” that a detainee would attempt
suicide where, in the previous week, the detainee had violently banged his head
against the bars of his cell, expressed irrational fears that the water in the jail was
contaminated, and told another detainee he wanted to drown himself in the toilet
and end his life. Elliot, 946 F.2d at 9-12.
Viewing the facts in the light most favorable to the Plaintiff and drawing all
inferences in her favor, there is a material dispute of fact regarding whether there
was already a substantial risk Lalli would attempt suicide when he was admitted
into the jail on October 3, 2009.
36
ii.
Officer Stilkey’s subjective awareness of the risk
The next question is whether Officer Stilkey knew of the substantial risk that
Lalli would attempt suicide. There is no doubt that Officer Stilkey was “aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exist[ed].” Farmer, 511 U.S. at 837. She completed Lalli’s suicide risk
assessment form and his medical screening form and observed his depressed affect
first-hand.
However, the Court must further determine whether Officer Stilkey actually
drew the inference that Lalli was at serious risk of attempting suicide. The
Defendants contend that Officer Stilkey failed to draw the inference, noting that she
wrote in Lalli’s suicide risk assessment that she “[didn’t] think he would [attempt
suicide] if he talk[ed] to someone” and that she thought “he’d be ok.” DRPSAMF ¶
329.
But under Farmer, a claimant “need not show that a [jail] official acted or
failed to act believing that harm actually would befall an inmate.” Farmer, 511 U.S.
at 842 (emphasis added). Rather, “it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.” Id. (emphasis added).
Furthermore, “courts must be exceptionally cautious” in making determinations
regarding state-of-mind at the summary judgment phase of a lawsuit, as state-ofmind is typically an issue of fact left for the jury. In re Varrasso, 37 F.3d at 764.
Here, under one plausible interpretation of the facts, Officer Stilkey
concluded that Lalli might well attempt to harm himself unless he was able to
37
“talk[ ] to someone.” DRPSAMF ¶ 329. Further, the record shows that Officer
Stilkey was sufficiently concerned about Lalli’s mental condition that she called her
supervisor, Sergeant Winslow, and told him he needed to review Lalli’s risk
assessment form personally. DRPSAMF ¶ 334. Taken in the light most favorable to
the Plaintiff, these facts do create a triable issue regarding whether Officer Stilkey
drew the inference that there was a substantial risk Lalli would attempt suicide.
iii.
The sufficiency of Officer Stilkey’s response
Even if Officer Stilkey was aware of a substantial risk that Lalli would
seriously harm himself, she cannot be held liable for violating Lalli’s Fourteenth
Amendment rights unless she “culpably ignore[d] or turn[ed] away” from a
substantial risk of serious harm. Alsina-Ortiz, 400 F.3d at 82. If she acted
reasonably to avoid the risk of harm, liability is inappropriate. Giroux, 178 F.3d at
33.
Here, Officer Stilkey responded by specifically alerting Sergeant Winslow,
her supervisor, to Lalli’s condition and asking him to review her risk assessment
and to speak with Lalli himself. DRPSAMF ¶ 334. The Plaintiff contends that
Officer Stilkey’s actions were deliberately indifferent because she acquiesced to her
supervisor’s decision to place Lalli on a fifteen-minute welfare watch and failed to
call Mid-Coast Mental Health and request a mental health evaluation for Lalli.
However, the deliberate indifference standard places no burden on jail officials to
override the will of their superiors. Adaweh v. Corr. Med. Servs., No. 1:11-cv-00172GZS, 2011 WL 6834090, at *3 (Dec. 28, 2011 D. Me. 2011), adopted by 2012 WL
38
398350 (Feb. 7, 2012 D. Me. 2012) (dental hygienist not deliberately indifferent for
failing to override dentist’s decision not to treat prisoner’s cavities). Where a claim
involves “the choice of a certain course” of remedial action, the Court will not find
deliberate indifference unless the defendant’s actions amounted to “a refusal to
provide essential care.” Feeney, 464 F.3d at 163 (internal quotation marks and
citations omitted). Here, Officer Stilkey made no such refusal. The record allows
only one fair interpretation: Officer Stilkey developed genuine concerns about Lalli’s
mental health and took active steps to ensure that Sergeant Winslow, the official
charged with deciding how to handle Lalli’s case, was aware of her concerns. At
worst, Officer Stilkey’s failure to call Mid-Coast Mental Health may have been
negligent. However, deliberate indifference proscribes only a “narrow band of
conduct” more culpable than negligence. Leavitt, 645 F.3d at 497.
The Plaintiff’s claim against Officer Stilkey fails at the final step of the
deliberate indifference inquiry. Because the Plaintiff has failed to point to concrete
facts in the record indicating Officer Stilkey consciously disregarded a substantial
risk that Lalli would commit suicide, Officer Stilkey is entitled to summary
judgment.
b. Sergeant Winslow
i.
The objective risk
The objective situation facing Sergeant Winslow on the evening of October 3,
2009 was essentially the same as that facing Officer Stilkey. Accordingly, for the
reasons discussed above, there is a material dispute of fact regarding whether Lalli
39
was at a substantial risk of serious harm when Sergeant Winslow reviewed Lalli’s
suicide risk assessment and decided to place Lalli on a fifteen-minute welfare
watch.
ii.
Sergeant Winslow’s subjective awareness of the
risk
Though Sergeant Winslow did not personally conduct Lalli’s suicide risk
assessment, he did review Lalli’s entire file after Officer Stilkey completed it.
Accordingly, he was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed].” Farmer, 511 U.S. at 837.
Given the number of troubling facts contained in Lalli’s file—his past suicide
attempt, his recent suicidal ideation, and the ambiguous answer he provided when
Officer Stilkey asked him whether he was currently suicidal—a reasonable jury
could infer that the risk that Lalli would attempt suicide was so obvious that
Sergeant Winslow must have realized it. See Farmer, 511 U.S. at 843-44. For this
reason, there is a material dispute of fact regarding whether Sergeant Winslow was
subjectively aware that there was a substantial risk that Lalli would seriously harm
himself.
iii.
The sufficiency of Sergeant Winslow’s response
A reasonable fact-finder could conclude that after reviewing Lalli’s file and
suicide risk assessment, Sergeant Winslow took the sole action of placing Lalli on a
welfare watch. PRDSMF ¶ 100. Jail policy calls for guards to regularly check on all
detainees housed in its intake wing every fifteen minutes, so placing a detainee on
welfare watch does not change how often the detainee is visited or monitored.
40
DRPSAMF ¶¶ 338-339. Instead, it has only two practical effects. First, as guards
complete their regularly scheduled fifteen-minute checks of a welfare watch
detainee, they are required to record their observations about the detainee’s
condition in a separate welfare watch logbook. PRDSMF ¶ 100. Second, the next
time a mental health worker from ARCH visits the jail, that worker is required to
meet one-on-one with the welfare watch detainee. PRDSMF ¶ 103. In this case, an
ARCH health care worker next visited the jail on October 6, 2009, three days after
Lalli’s arrival and a day after his suicide attempt. PRDSMF ¶ 103.
There is no evidence that any jail official was charged with reading or
analyzing the welfare watch logbook or taking any specific action based on what
prison guards entered into it. A reasonable jury could conclude that requiring
guards to record their observations in a welfare watch logbook has no practical
effect and serves only to paper the jail’s file. Leavitt, 645 F.3d at 488-90, 499.
Likewise, the only action Sergeant Winslow took to ensure Lalli received
mental health support was to provide for Lalli to see a social worker whenever that
social worker next happened to be on the premises. A reasonable jury could
conclude that this action did nothing to prevent Lalli from attempting suicide in the
intervening time. Based on Lalli’s responses, the suicide assessment form required
the jail to call MCMH. The form is ambiguous as to who had the duty to call. A
reasonable jury could find that it was incumbent upon Sergeant Winslow, as the
shift supervisor, to ensure that the call was made. PRDSMF ¶ 102-103.
41
Finally, a reasonable jury could conclude that Sergeant Winslow failed to
take reasonable measures that were available to him. He failed to place Lalli in
either of the jail’s suicide prevention cells, instead placing him in a regular cell
containing objects he could use to harm himself, including bed sheets. PRDSMF
¶ 226; DRPSAMF ¶¶ 271, 274, 417. He failed to place Lalli on suicide watch, under
which jail guards would have monitored him continuously, instead placing him on
welfare watch, under which he was monitored no more than any other pretrial
detainee in the jail’s intake wing. DRPSAMF ¶ 338; Defs.’ Exh. 12 at 3, ECF No. 8827.
Sergeant Winslow’s involvement in Lalli’s case was almost two days removed
from Lalli’s suicide attempt, but this fact alone does not preclude liability. As the
Supreme Court has made clear, a § 1983 defendant who violates the Constitution is
“‘responsible for the natural consequences of his actions.’” Malley v. Briggs, 475 U.S.
335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 287 (1961)). And as the
First Circuit has explained, this includes “‘consequences attributable to reasonably
foreseeable intervening forces, including the acts of third parties.’” GutierrezRodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) (quoting Marshall v. Perez
Arzuaga, 828 F.2d 845, 848 (1st Cir. 1987)).
Here, a reasonable fact-finder could infer that Sergeant Winslow was the only
jail official charged with evaluating and acting upon the information the jail
collected during Lalli’s intake. The decisions that he made about Lalli’s housing and
monitoring regime set a baseline which affected how everyone else at the jail
42
interacted with Lalli. The other corrections officers who encountered Lalli may have
been lulled into complacency by the fact that the official charged with reviewing
Lalli’s intake file decided he merited only welfare watch treatment.
Taking the facts in the light most favorable to the Plaintiff and drawing all
inferences in her favor, a fact-finder could conclude that Sergeant Winslow took
essentially no action to reduce the substantial risk that Lalli would attempt to kill
himself before ARCH’s next visit to the jail, three days later. Under this view of the
facts, this is not a case where Sergeant Winslow merely chose between different
“course[s] of treatment,” but rather one where he failed to provide any meaningful
help at all. Feeney, 464 F.3d at 163 (internal quotation marks and citations
omitted); see also Leavitt, 645 F.3d at 499. Accordingly, there is a triable issue of
fact regarding whether Sergeant Winslow “culpably ignore[d]” a substantial risk
that Lalli would seriously harm himself. Alsina-Ortiz, 400 F.3d at 82.
c. Officer Heath IV
The Plaintiff does not oppose the Defendants’ motion with respect to Officer
Heath IV. Accordingly, the court grants the Defendants’ motion for summary
judgment with respect to the Plaintiff’s § 1983 claim against Officer Heath IV.
d. Officer Wood
i.
The objective risk
The Defendants concede, for purposes of their motion for summary judgment,
that there is a genuine issue of material fact regarding whether there was a
43
substantial risk that Lalli would seriously harm himself on the afternoon of October
5, 2009, when Officer Wood encountered Lalli.
ii.
Officer Wood’s subjective awareness of the risk
The parties dispute exactly what Officer Wood observed on the afternoon of
October 5, 2009. Officer Wood admits that he heard Lalli suddenly exclaim, while
the judge was addressing him, that “[i]t’s over” and that he “need[ed] to get out.”
PRDSMF ¶¶ 162, 172, 183. He concedes that these statements were a “red flag,” but
he also claims he never heard Lalli say he was going to kill himself. PRDSMF ¶ 183;
Aff. of Robert Wood ¶ 12, ECF No. 88-15.
By contrast, the Plaintiff’s witnesses contend Lalli threatened to kill himself
numerous times in Officer Wood’s presence. DRPSAMF ¶¶ 364, 366, 372, 375, 377,
380, 382-83, 385-87, 389-90; PRDSMF ¶¶ 156, 158. A reasonable fact-finder could
infer that he witnessed at least some of Lalli’s behavior and was therefore aware of
facts which indicated “a substantial risk of serious harm.” Farmer, 511 U.S. at 837.
At issue, then, is whether Officer Wood actually drew the inference that a
there was a substantial risk. The Defendants claim that the Court must take Officer
Wood at his word that he did not realize Lalli was suicidal. However, the Court
need not rely on self-interested testimony, as the required state-of-mind may be
proved “in the usual ways,” such as by showing that the risk was so obvious that the
Officer Wood must have been aware of it. Id. at 842-44.
Here, given the sheer number of times Lalli allegedly explicitly threatened to
kill himself in Officer Wood’s presence, a reasonable fact-finder could conclude that
44
the risk of self-harm was so obvious that Officer Wood must have been aware of it.
Additionally, after Lalli told his defense attorney that he “didn’t have anything to
live for” if he was denied bail, Officer Wood allegedly responded by threatening to
put Lalli in a “turtle suit,” a slang term for a suicide smock. PRDSMF ¶ 165;
DRPSAMF ¶ 373. This comment also supports a conclusion that Officer Wood was
aware of the risk of a suicide attempt.
iii.
The sufficiency of Officer Wood’s response
Armed with the awareness that there was a substantial risk that Lalli would
attempt to seriously hurt himself, Officer Wood essentially took no action. He never
told anyone back at the jail about the behavior Lalli exhibited earlier in the day, nor
did he take any other affirmative action to ensure Lalli’s safety. As the only
transport officer assigned to the van Lalli traveled in, Officer Wood was in the best
position to monitor Lalli during his trip to and from the courthouse. Thus, as with
the shift supervisor in Giroux, a reasonable jury could find that it was within
Officer Wood’s “scope of responsibility” to inform the officials back at the jail about
what transpired in the van and in the courthouse, so that they could take
appropriate action in response. Giroux, 178 F.3d at 34.
Accordingly, viewing the facts in the light most favorable to the Plaintiff,
Officer Wood was aware of a substantial risk that Lalli would seriously harm
himself and consciously disregarded that risk by failing to take any meaningful
action at all.
45
e. Officers Heath III and Truppa
The facts surrounding the claims against Officers Heath III and Truppa are
largely the same. For that reason, the Court discusses their claims together.
i.
The objective risk
For purposes of their motion for summary judgment, the Defendants concede
that a substantial risk of serious harm existed when Officers Heath III and Truppa
accompanied Lalli to and from the Knox County District Court. Accordingly, the
Court presumes that the objective prong is satisfied.
ii.
Officer Heath III
awareness of the risk
and
Truppa’s
subjective
Officers Heath III and Truppa also served as transport officers on October 5,
2009, but they rode to and from the courthouse in a separate van from Officer Wood
and Lalli. PRDSMF ¶¶157, 157A. Once in the courtroom, though, they were seated
closer to the inmates than Officer Wood and, unlike Officer Wood, they never left
the courtroom to bring paperwork to the clerk’s office. Therefore, a reasonable factfinder might conclude that Officers Heath III and Truppa heard all the comments
that Lalli made in the courtroom.
Further, both Officers Heath III and Truppa personally admitted to
observing some of Lalli’s more troubling behavior. For instance, Officer Heath III
testified that he saw Lalli grow upset when the judge spoke to him, that he heard
Lalli plead with the judge to release him, including telling the judge that it “would
all be over” if he was held and that he would “just end it,” and that he observed Lalli
grow more and more agitated as the proceedings continued. PRDSMF ¶ 169.
46
Likewise, Officer Truppa admitted that he heard Lalli beg the judge to release him,
and say that he would lose his job and custody of his child if the judge denied his
bail. PRDSMF ¶¶ 170-71. Officer Truppa also testified he heard Lalli say to the
judge, “[t]his is no good,” “I have to get out,” and “[t]his is going to wreck my life.”
PRDSMF ¶¶ 170-71.
Accordingly, a reasonable jury could find that both Officers Heath III and
Truppa observed suicidal behavior by Lalli on the afternoon of October 5, 2009 and
were aware that Lalli’s mental state deteriorated after the judge declined to release
him. Therefore, there is a triable issue regarding whether Officers Heath III and
Truppa were aware of facts indicating there was a substantial risk Lalli would
attempt to seriously harm himself.
Though both Officers Heath III and Truppa testified that they did not
actually realize the risk facing Lalli, the Court is not obliged to credit their selfinterested testimony. See Farmer, 511 U.S. at 842-44 (1994); In re Varrasso, 37 at
764. Based on the persistent and explicitly suicidal behavior which the officers
witnessed, a reasonable fact-finder could conclude that the risk that Lalli would
attempt to kill himself was obvious and therefore Officers Heath III and Truppa
must have been aware of it.
iii.
The sufficiency of Officer Heath III and Truppa’s
responses
The Plaintiff alleges that, like Officer Wood, Officers Heath III and Truppa
failed to take any action at all in response to the substantial risk that Lalli would
47
attempt to kill himself. The summary judgment record, viewed in the light most
favorable to the Plaintiff, supports this allegation.
Though Officers Heath III and Truppa did not drive Lalli to and from the
courthouse, they were at Officer Wood’s side from the moment Officer Wood
returned to the intake area until the three transport officers left together to move
the jail’s vans out of the sallyport. PRDSMF ¶¶ 188-91. Accordingly, a reasonable
jury could conclude that they were aware Officer Wood failed to notify anyone at the
jail about Lalli’s erratic behavior at the courthouse yet took no action to correct the
omission.
Viewed in the light most favorable to the Plaintiff, the facts indicate Officers
Heath III and Truppa took no action to forestall a substantial risk that Lalli would
attempt to kill himself despite a duty to act. See Giroux, 178 F.3d at 34. Therefore,
there is a triable issue regarding whether they “culpably ignore[d]” a substantial
risk of serious harm. Alsina-Ortiz, 400 F.3d at 82.
f. Corporal Woll
i.
The objective risk
As with the other Defendants who dealt with Lalli on October 5, 2009, the
objective risk that Lalli would seriously harm himself is conceded.
ii.
Corporal Woll’s subjective awareness of the risk
The Plaintiff points to myriad facts showing that Corporal Woll, the shift
supervisor on the day Lalli attempted suicide, was “aware of facts from which the
48
inference could be drawn that” there was a substantial risk that Lalli would
seriously harm himself. Farmer, 511 U.S. at 837.
First, at around 7 a.m. on the morning of October 5th, Corporal Woll learned
that Lalli had just told Officer Heath IV that he was “losing his mind” and that “if
he was not allowed to be on the outside then it would be better if he wasn’t alive at
all.” PRDSMF ¶¶ 119-20, 123. Second, later in the morning, when Corporal Woll
spoke with Lalli personally, he learned that Lalli was concerned that he would lose
custody of his child if he was not released on bail. PRDSMF ¶¶ 129, 132; DRPSAMF
¶¶ 348-349. When Corporal Woll asked Lalli if he wanted to speak with a mental
health worker, Lalli told Corporal Woll “he would be doing all right as long as he got
to court and got out to see his child,” arguably implying that he might not be “all
right” if he did not “get out to see his child.” PRDSMF ¶¶ 133-34. Third, after Lalli
returned from the courthouse, Corporal Woll was present in the jail’s intake area as
Lalli was “kicking” and “slamming around,” and making numerous loud threats to
kill himself. PRDSMF ¶ 194; DRPSAMF ¶¶ 394, 396, 398. Fourth, shortly
afterwards, Corporal Woll overheard Lalli tell his mother over the phone that “if he
didn’t have his daughter, then he would rather die.” PRDSMF ¶ 205-06. Fifth, after
Lalli returned to Cell 135, he began pacing in the adjacent day room, screaming
“I’m going to fucking kill myself” as loud as if he were “hollering to somebody 75
yards away.” DRPSAMF ¶¶ 408-09. Viewing these facts in the light most favorable
to the Plaintiff, there is a genuine issue of material fact as to whether Corporal Woll
49
was aware of facts demonstrating that there was a substantial risk Lalli would try
to seriously harm himself on the afternoon of October 5, 2009.
It follows that a fact-finder could conclude, “from the very fact that [it] was
obvious,” that Corporal Woll actually drew the inference that a substantial risk
faced Lalli. Farmer, 511 U.S. at 837, 842-43. This is further borne out by Corporal
Woll’s testimony that he viewed Lalli as a “potential risk” that morning, that he was
“worried” about Lalli’s safety after he overheard parts of his phone call, and that he
was going to take steps to restrain Lalli and move him into a suicide prevention cell.
PRDSMF ¶¶ 124, 208-09; DRPSAMF ¶¶ 271-72, 401-02.
iii.
The sufficiency of Corporal Woll’s response
The Defendants contend that Corporal Woll did not consciously disregard any
risk to Lalli. By their account, Corporal Woll developed a reasonable plan to head
off the danger and was in the process of executing that plan when Lalli was hurt.
The plan was to move Lalli from Cell 135 to Cell 124, to change Lalli’s observation
level from welfare watch to suicide watch, and to restrain Lalli in a suicide smock.
PRDSMF ¶¶ 207-08; DRPSAMF ¶ 402. They argue that Corporal Woll did not put
these changes into place right away only because he was still busy processing
returning inmates and needed to move other detainees to make room for Lalli in
Cell 124. PRDSMF ¶¶ 210-15, 219.
However, Lalli attempted suicide before Corporal Woll put his plan into
place. Rather than taking immediate action to an obvious threat, Corporal Woll
delayed, allowing officials under his supervision to return Lalli to Cell 135 without
50
taking away his bed sheet, without restraining him, and without placing him under
continuous observation. Further, the Defendants’ explanation for Corporal Woll’s
failure to take action—that he was still busy completing administrative tasks and
that other detainees needed to be moved before Lalli could be placed in Cell 124—
falls short. The fact that Cell 124 was occupied and that he had other
administrative tasks to complete explains only why Corporal Woll delayed moving
Lalli to a suicide-safe cell, not why he delayed enacting the other available
measures. A fact-finder could determine that it was grossly unreasonable for
Corporal Woll to delay enacting these measures and that therefore Corporal Woll
consciously disregarded the risk that Lalli would harm himself at the moment the
risk was most acute.
g. Officer Escorsio
i.
The objective risk
The Defendants concede, for purposes of summary judgment, that there was
an objectively substantial risk of serious harm when Officer Escorsio interacted
with Lalli.
ii.
Officer Escorsio’s subjective awareness of the risk
The record also substantiates that Officer Escorsio was “aware of facts from
which the inference could be drawn” that there was a substantial risk that Lalli
would seriously harm himself. Farmer, 511 U.S. at 837. First, Officer Escorsio was
aware of Officer Heath IV’s interactions with Lalli that morning. PRDSMF ¶¶ 120,
123; DRPSAMF ¶¶ 359, 360. Second, Officer Escorsio was present in the intake
51
area during periods when Lalli was behaving erratically and threatening to kill
himself.
DRPSAMF ¶ 364; PRDSMF ¶ 194; DRPSAMF ¶ 394, 396, 398. Third,
Officer Escorsio was sitting near Lalli as he spoke to his mother on the phone and
heard parts of the same conversation that led Corporal Woll to conclude that Lalli
should be moved to suicide-safe cell, restrained, and placed on suicide watch.
PRDSMF ¶ 202; DRPSAMF ¶ 402. Finally, Lalli was screaming that he was “going
to fucking kill [him]self” as if he were “hollering to somebody 75 yards away” just
before Officer Escorsio told him to quiet down. DRPSAMF ¶¶ 408-14.
Based on this evidence, a reasonable fact-finder could conclude that the risk
facing Lalli was “obvious” and therefore Officer Escorsio must have drawn the
inference the he was at substantial risk of serious harm. This conclusion is further
supported by Officer Escorsio’s own words. First, Officer Escorsio testified that
Lalli’s phone conversation with his mother worried her enough that she wanted to
move Lalli to a safer location. PRDSMF ¶ 209. Second, an inmate testified that
when Officer Escorsio returned Lalli to Cell 135, she warned him that if he kept it
up he would be put “up front in the turtle suit.” DRPSAMF ¶ 404. There is a
genuine dispute of material fact regarding whether Officer Escorsio realized that
Lalli faced a substantial risk of serious harm on the afternoon of October 5, 2009.
iii.
The sufficiency of Officer Escorsio’s response
Viewing the facts in the light most favorable to the Plaintiff and drawing all
inferences in her favor, the record shows that Officer Escorsio returned Lalli to Cell
135 at around 3:00 p.m., allowing him access to both the day room and his private
52
cell, and that she failed to remove his bedding. DRPSAMF ¶¶ 403, 403A. Before
leaving, Officer Escorsio commanded Lalli to “sit down” and “shut up” and warned
him that he would be restrained in a “turtle suit” if he did not obey. DRPSAMF
¶ 404. Though the welfare watch policy mandated that Officer Escorsio check in on
Lalli every fifteen minutes, a reasonable fact-finder could conclude she did not
return for about 20 minutes.12 PRDSMF ¶ 221; DRPSAMF ¶ 415. A reasonable factfinder could also find that Officer Escorsio conducted only a cursory check,
“holler[ing]” into Lalli’s cell from outside that he needed to “quiet down” but never
actually entering his cell or directly observing him. PRDSMF ¶ 221; DRPSAMF
¶ 415.
The summary judgment record demonstrates that Officer Escorsio failed to
take any action to reduce the risk that Lalli would harm himself. At no point, for
instance, did Officer Escorsio remove objects from Lalli’s cell that he could use to
harm himself, restrain Lalli in the suicide smock, arrange for Lalli to be observed
continuously, or consult with the mental health provider about how to handle Lalli.
A reasonable fact finder could conclude that Officer Escorsio’s commands to “sit
down” and “shut up,” and threats of a “turtle suit” worsened Lalli’s fragile condition.
Since Officer Escorsio took essentially no action to protect Lalli after he
returned to Cell 135, there is a triable issue regarding whether Officer Escorsio
The parties disagree about whether or not Officer Escorsio checked on Lalli at 3:15 p.m., as
Officer Escorsio contends and as she recorded in the Jail’s logbook, or closer to 3:20 p.m., as the
testimony of certain inmates suggests. At the summary judgment phase, the Court is obliged to
resolve the discrepancy in favor of the Plaintiff. See Rodriguez, 659 F.3d at 175.
12
53
“culpably ignor[ed]” a substantial risk that serious harm would befall Lalli. AlsinaOrtiz, 400 F.3d at 82.
2. Qualified Immunity
a. The Legal Standard
All of the individual defendants argue that, even if their conduct did amount
to deliberate indifference, they are entitled to summary judgment because qualified
immunity shields them from liability. Where a constitutional violation is
established, the doctrine of qualified immunity may be invoked to “protect[] a state
official from liability for damages under § 1983.” Rocket Learning, Inc. v. RiveraSanchez, 715 F.3d 1, 8 (1st Cir. 2013). “Qualified immunity is a judge-made
construct that broadly protects public officials from the threat of litigation arising
out of their performance of discretionary functions.” Bergeron v. Cabral, 560 F.3d 1,
5 (1st Cir. 2009).
The First Circuit prescribes a two-step process to determine whether an
official is entitled to qualified immunity. Mosher v. Nelson, 589 F.3d 488, 492 (1st
Cir. 2009). First, the Court must determine “whether the facts alleged or shown by
the plaintiff make out a violation of a constitutional right.” Maldonado v. Fontanes,
568 F.3d 263, 269 (1st Cir. 2009). Second, the Court must determine “whether the
right was ‘clearly established’ at the time of the defendant’s violation.” Id. (quoting
Pearson v. Callahan, 555 U.S. 223, 816 (2009)).
Completing the “clearly established” step of the qualified immunity analysis
requires answering two further questions. Mosher, 589 U.S. at 493. First, the Court
54
asks “whether ‘the contours of the right were sufficiently clear that a reasonable
official would understand that what he is doing violates that right . . . .’” Id.
(quoting Maldonado, 568 F.3d at 269). Second, the Court asks “whether in the
specific context of the case, ‘a reasonable defendant would have understood that his
conduct violated the plaintiffs’ constitutional rights.’” Id. (quoting Maldonado, 568
F.3d at 269). If the answer to either of these questions is “no,” the official in
question is entitled to qualified immunity. See Maldonado, 568 F.3d at 269. The
first question “focuses on the clarity of the law at the time of the alleged civil rights
violation,” while the second question “focuses more concretely on the facts of the
particular case and whether a reasonable defendant would have understood that his
conduct violated the plaintiffs’ constitutional rights.”13 Maldonado, 568 F.3d at 269.
As the First Circuit has elaborated, “[t]he ‘clearly established’ inquiry ‘must
be undertaken in light of the specific context of the case, not as a broad general
proposition.’” Rocket Learning, 715 F.3d at 9 (quoting Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (internal
quotation marks omitted in the original). Accordingly, “[t]he relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable [official] that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202 (emphasis added). On the other hand,
One law review article helpfully distinguishes the two inquiries in the following way:
“Essentially, there are two categories of qualified immunity arguments. Defendants might argue
that the relevant rule at the time of their alleged conduct was vague or unclear. Alternatively,
defendants might argue that, given the information in their possession at the time of the alleged
violation, a reasonable officer would (or could) conclude that the conduct was lawful.” Teressa E.
Ravenell, Hammering in Screws: Why the Court Should Look Beyond Summary Judgment When
Resolving § 1983 Qualified Immunity Disputes, 52 Vill. L. Rev. 135, 138-39 (2007) (footnotes
omitted).
13
55
“[c]learly established law does not depend on identical circumstances repeating
themselves.” Mosher, 589 F.3d at 493. “The law is considered clearly established
‘either if courts have previously ruled that materially similar conduct was
unconstitutional, or if ‘a general constitutional rule already identified in the
decisional law applies with obvious clarity to the specific conduct at issue.’’”
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 527 (1st Cir. 2009) (quoting
Jennings v. Jones, 499 F.3d 2, 16 (1st Cir. 2007) (quoting United States v. Lanier,
520 U.S. 259, 271 (1997))). In other words, “notable factual differences may exist
between prior cases and the circumstances at hand as long as the state of the law at
the time gave the defendant ‘fair warning’ that his action or inaction was
unconstitutonial.” Mosher, 589 F.3d at 493 (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2009)).
b. Applying the Standard
With respect to Sergeant Winslow, Corporal Woll, and Officers Wood, Heath
III, Truppa, and Escorsio, “the facts alleged or shown by the plaintiff make out a
violation of a constitutional right.” Maldonado, 568 F.3d at 269. See Coscia, 659
F.3d at 39 (14th Amendment prohibits acting with deliberate indifference to a
substantial risk of serious harm to a pretrial detainee). Accordingly, the Court must
proceed to the two-step “clearly established” phase of the qualified immunity
inquiry.
56
i. Whether the contours of the right were sufficiently
clear under established law
As of October 3, 2009, it had long been settled law that state jail officials
violate the Due Process Clause of the Fourteenth Amendment when they act with
deliberate indifference toward the risk that pretrial detainees will seriously harm
themselves while in state custody. See Elliot, 940 F.2d at 10-12. It was also clearly
established that the First Circuit applies the Farmer v. Brennan standard to cases
involving pretrial detainees and that an official violates this standard “if he knows
that [a pretrial detainee] face[s] a substantial risk of serious harm” but “disregards
that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at
847; Burrell, 307 F.3d at 7 (applying Farmer). Furthermore, as this District made
clear in 2005, “[t]here is no dispute, nor should there be, that suicide is a serious
harm under Farmer.” Martin, 387 F. Supp. 2d at 76 (internal citations omitted).
Thus, as a general matter, a reasonable official in the Defendants’ position in
October of 2009 would have known that it violates the Fourteenth Amendment to
fail to take reasonable measures to thwart a known, substantial risk that a pretrial
detainee will attempt suicide. See Farmer, 511 U.S. at 847; Burrell, 307 F.3d at 7;
Elliot, 940 F.2d at 10-12; Martin, 387 F. Supp. 2d at 76. Lastly, it was also “clearly
established” that a plaintiff may make out a deliberate indifference claim by
showing that an official failed to communicate critical information about a specific,
serious risk facing an inmate where it was within the official’s scope of
responsibility to do so. Giroux, 178 F.3d at 34.
57
ii. The specific conduct at issue
In the cases against these six defendants—Sergeant Winslow, Corporal Woll,
and Officers Wood, Truppa, Heath III, and Escorsio—the Plaintiff is able to make
out essentially the same charge: that, faced with knowledge of a substantial risk to
Lalli, each took effectively no action to protect him. The Defendants contend that
this is not enough to defeat their qualified immunity defense. Instead, they argue,
the Court should require the Plaintiff to identify a case where a court has held that
placing a pre-trial detainee or convicted inmate on fifteen-minute checks violated
the Constitution. Defs.’ Reply Mem. 20, ECF No. 102.
This argument misunderstands the “clearly established law” inquiry. Where
a general constitutional rule “applies with obvious clarity” to the defendants’
conduct, identifying a case involving “identical circumstances” is not necessary.
Guillemard-Ginorio, 585 F.3d at 527; Mosher, 589 F.3d at 493. The Defendants’
alleged conduct—effectively failing to take any action to forestall the risk that Lalli
would attempt suicide at the moment he did—clearly falls under the “general
constitutional rule” that it violates the Fourteenth Amendment to fail to take
reasonable measures to thwart a known, substantial risk that a pretrial detainee
will attempt suicide. See Farmer, 511 U.S. at 847; Burrell, 307 F.3d at 7; Elliot, 940
F.2d at 10-12; Martin, 387 F. Supp. 2d at 76.
For these reasons, Sergeant Winslow, Corporal Woll, and Officers Wood,
Heath III, Truppa, and Escorsio are not entitled to qualified immunity.
58
B.
Maine Tort Law Claims
1. Negligence Claims against the County
The Plaintiff concedes that the Maine Tort Claims Act (the “MTCA”) bars its
negligence claims against the Municipal Defendants. Pl.’s Mem. in Opp’n to Defs.’
Mot. for Summ. J. 27-28 n.19, ECF No. 92; see 14 M.R.S.A. §§ 8100−8118. The Court
grants the Defendants’ motion for summary judgment with respect to the Plaintiff’s
state law negligence claims against the Municipal Defendants.
2. Negligence Claims against Corporal Woll and Officers Stilkey
and Heath IV
The Plaintiff concedes that because she failed to provide Corporal Woll and
Officers Stilkey and Heath IV with written notice of her state law negligence claims
against them within 180 days of their accrual as required by 14 M.R.S.A. § 8109,
her claims against those Defendants fail. PRDSMF ¶ 257; Pl.’s Mem. in Opp’n to
Defs.’ Mot. for Summ. J. at 27-28 n.19. Therefore, the Court grants the Defendants’
motion for summary judgment with respect to the Plaintiff’s state law negligence
claims against Corporal Woll and Officers Stilkey and Heath IV.
3. Negligence Claims against Sergeant Winslow and Officers
Wood, Heath III, Truppa, and Escorsio
The Plaintiff brings state law negligence claims against Sergeant Winslow,
and Officers Wood, Heath III, Truppa, and Escorsio based on their handling of Lalli
on October 3, 2009 and October 5, 2009. The Defendants contend that § 8111(1)(C)
of the MTCA, which grants employees of governmental entities immunity from suit
59
for claims arising out of “[p]erforming or failing to perform any discretionary
function or duty,” bars the Plaintiff’s claims. 14 M.R.S.A. § 8111(1)(C).
Section 8111(1)(C) explicitly provides for discretionary immunity to apply
“whether or not the discretion is abused.” 14 M.R.S.A. §8111(1)(C). However, the
Law Court has made clear that the immunity is lost where a defendant’s conduct
“so clearly exceeds the scope of an employee’s authority that the employee cannot
have been acting in his official capacity.” Hilderbrand II v. Washington Cnty.
Comm’rs, 33 A.3d 425, 429 (Me. 2011); see also Bowen v. Dep’t of Human Servs., 606
A.2d 1051 (Me. 1992) (immunity lost where employee’s conduct is “so egregious”
that it exceeds scope of employee’s discretion as a matter of law). The only disputed
issue with respect to § 8111(C) immunity is whether this exception applies.14
The Plaintiff argues that it does. In support, she points to Estate of Hampton
v. Androscoggin Cnty., 245 F. Supp. 2d 150 (D. Me. 2003) and Ellis v. Meade, 887 F.
Supp. 324 (D. Me. 1995), two cases which she claims stand for the proposition that
the “egregious” action inquiry is “coterminous with the outcome of the deliberate
indifference inquiry.” Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J. 28. She makes
no other argument in support of her position.
The citations to Estate of Hampton and Ellis are unconvincing. Each is a
case where this District found that the defendants had not acted with deliberate
indifference and, predictably, also had not “clearly exceed[ed] the scope of [their]
authority.” Hilderbrand, 33 A.3d at 429; Estate of Hampton, 245 F. Supp. 2d at 160-
The Plaintiff concedes that the supervision of pretrial detainees is a discretionary function
under Maine law. See Roberts v. State, 731 A.2d 855, 857-58 (Me. 1999).
14
60
61; Ellis, 887 F. Supp. at 329-31. The cases do not support the obverse proposition
that where a defendant’s conduct is deliberately indifferent it is necessarily
egregious.
Sergeant Winslow, and Officers Wood, Heath III, Truppa, and Escorsio’s
conduct may constitute an abuse of their discretion to supervise pretrial detainees,
but it is not self-evidently “so egregious that it ‘exceeds as a matter of law, the scope
of any discretion [they] could have possessed . . . .’” Bowen v. Dep’t of Human Servs.,
606 A.2d 1051, 1055 (Me. 1992) (quoting Polley v. Atwell, 581 A.2d 410, 414 (Me.
1990)). Because Maine law requires us to strictly construe exceptions to § 8111 and
the Plaintiff has not supported her position with a cogent legal argument, Sergeant
Winslow, and Officers Wood, Heath III, Truppa, and Escorsio are entitled to
discretionary immunity under the Maine Tort Claims Act.15 See Grossman v.
Richards, 722 A.2d 371, 375 (Me. 1999) (explaining that the Law Court “strictly
construe[s] exceptions” to § 8111 of MTCA); Fortin v. Titcomb, 671 F.3d 63, 67 (1st
Cir. 2012) (explaining that “[t]he Law Court appears to be particularly strict in
construing the provisions of the MTCA that govern suits against government
employees”).
C.
§ 1983 Claims against Municipal Defendants
The Plaintiff puts forward two related theories of municipal liability against
the Municipal Defendants. The Plaintiff claims that the Municipal Defendants are
The Defendants offer that, even if § 8111(1)(C) does not apply, the Plaintiff’s claims are
barred by § 8111(1)(E). This grants government employees absolute immunity for tort claims arising
out of “[a]ny intentional act or omission within the course and scope of employment,” except for
actions taken “in bad faith.” 14 M.R.S.A. § 8111(1)(E). Because § 8111(1)(C) applies, the Court does
not reach the issue of whether § 8111(1)(E) also bars the Plaintiff’s claims.
15
61
liable for: (1) failing to adequately train the jail’s staff in suicide prevention; and (2)
employing insufficient suicide prevention policies, procedures, customs and
practices by allowing shift supervisors discretion in determining how suicidal
inmates are handled.
Local governments may be held liable under § 1983 if they cause a person to
be subjected to a constitutional deprivation. Connick v. Thompson, 131 S.Ct. 1350,
1359 (2011) (citing Monell v. New York City Dept. of Social Servs. 436 U.S. 658, 692
(1978)). But they “are responsible only ‘for their own illegal acts’” and “are not
vicariously liable . . . for their employees’ actions.” Id. (internal citations omitted).
“[A] plaintiff seeking to impose liability on a municipality under § 1983 must
identify a municipal ‘policy’ or a ‘custom’ that caused the plaintiff’s injury.” Silva v.
Worden, 130 F.3d 26, 30-31 (1st Cir. 1997) (citing Board of Cnty. Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 403 (1997), Pembaur v. Cincinnati, 475 U.S. 469, 47981 (1986) and Monell, 436 U.S. at 694)). “The disputed ‘policy’ or ‘custom’ must also
be the cause and moving force behind the deprivation of constitutional rights.”
Silva, 130 F.3d at 31 (citing Bryan Cnty. Comm’rs, 520 U.S. at 404).
The term “policy” encompasses “a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by [the governmental] body’s officers.”
Monell, 436 U.S. at 690. As the Supreme Court noted in Monell:
although the touchstone of the § 1983 action against a government
body is an allegation that official policy is responsible for a
[constitutional] deprivation . . . local governments . . . by the very
terms of the statute, may be sued for constitutional deprivations
visited pursuant to governmental “custom” even though such a custom
62
has not received formal approval through the body’s official
decisionmaking channels.
436 U.S. at 690-91. Municipal liability for a “custom” attaches when “the relevant
practice is so widespread as to have the force of law.” Bryan Cnty. Comm’rs, 520
U.S. at 404;16 see also Silva, 130 F.3d at 31 (“[O]ne method of showing custom is to
demonstrate that the custom or practice is so ‘well settled and widespread that the
policymaking officials of the municipality can be said to have either actual or
constructive knowledge of it yet did nothing to end the practice.’” (quoting
Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.1989)).
1. Failure to Train Jail Personnel in Suicide Prevention
The Plaintiff’s failure to train claim is a species of the general claim that the
Municipal Defendants’ inadequate policies, procedures, customs and practices
caused Lalli’s injuries. See Connick, 131 S. Ct. at 1359-60. The Supreme Court has
recently cautioned that municipal liability is “at its most tenuous” where failure-totrain claims are concerned. Connick, 131 S.Ct. at 1359.
For this claim to succeed, the Plaintiff must establish that the “municipality’s
failure to train its employees in a relevant respect . . . amount[s] to ‘deliberate
indifference to the rights of persons with whom the [untrained employees] come into
contact.’” Connick, 131 S.Ct. at 1359 (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 388 (1989)). Deliberate indifference requires the municipal actor to
“disregard[ ] a known or obvious consequence of his action,” so liability only arises
Connick reformulates this ever so slightly, eliding § 1983’s reference to “custom or usage”
and in essence making “practices” that are “so persistent and widespread as to practically have the
force of law” a species of the “official policy” that may support liability. Connick, 131 S. Ct. at 1359.
16
63
when municipal “policymakers are on actual or constructive notice that a particular
omission in their training program causes . . . employees to violate citizens’
constitutional rights.” Id. (internal citations omitted.)
In all but a narrow range of instances, deliberate indifference in a failure to
train claim is established by evidence that shows “a pattern of similar constitutional
violations by untrained employees.” Id. at 1360-61. A single constitutional violation
supports a claim for failure to train only where the violation of constitutional rights
is a “highly predictable consequence” of the failure to train. Id. at 1361 (quoting
Bryan County Comm’rs, 520 U.S. at 409); see also Canton, 489 U.S. at 390, n. 10.
The Supreme Court provided the following illustration:
For example, city policymakers know to a moral certainty that their
police officers will be required to arrest fleeing felons. The city has
armed its officers with firearms, in part to allow them to accomplish
this task. Thus, the need to train officers in the constitutional
limitations on the use of deadly force can be said to be “so obvious” that
failure to do so could properly be characterized as “deliberate
indifference” to constitutional rights.
Canton, 489 U.S. at 390 n. 10.
The Plaintiff faces three obstacles in her failure to train claim: (a) the jail’s
staff had actually been trained in suicide prevention; (b) the record does not reveal a
pattern of similar constitutional violations; and (c) the evidence of causation is slim.
a. Training in Suicide Prevention
The jail has admittedly not kept up with its policy of providing annual suicide
prevention training to its staff. Nevertheless, all of the individual defendants had at
least some training in suicide prevention, both from basic corrections courses and
64
from suicide prevention trainings at the jail. Officer Escorsio was trained three
times in five years; Officer Heath III was trained twice in 14 years and was also an
instructor in suicide prevention training; Officer Truppa was trained seven times in
21 years; Sergeant Winslow was trained seven times in 11 years; Corporal Woll was
trained three times in three years; and Officer Wood was trained five times in 19
years.
The Plaintiff’s expert contends that “it is well known that one of the keys to
proper training is repetition,” and that the jail’s failure to complete annual
trainings resulted in the failure of jail personnel to retain valuable suicideprevention information. Aff. of Linsday M. Hayes ¶¶ 38-39, ECF No. 92-1 (“Hayes
Aff.”).17 He opines that suicide prevention training would have reminded jail
personnel, for example, that an inmate intent on suicide can hang himself in three
to five minutes, making a fifteen-minute watch ineffective for those at high risk of
suicide. Hayes Aff. ¶ 40. Even accepting the Plaintiff’s argument that suicide
prevention training is not “proper” if it is not repeated every year, the Plaintiff does
not dispute that the jail provided some training.
The two cases that are most applicable to the Plaintiff’s situation, Canton
and Young v. City of Providence, were cases in which the plaintiffs essentially
alleged that the municipal defendants offered no training. See Canton, 489 U.S. at
381-82, Young v. City of Providence ex. rel. Napolitano, 404 F.3d 4, 17, 27-28 (1st
The Plaintiff did not incorporate her expert’s affidavit into her statements of fact, in violation
of Local Rule of Civil Procedure 56. By referring to the affidavit the Court does not condone this
practice. The Plaintiff needlessly imperiled her position on summary judgment by failing to set forth
the affidavit’s contents within her statements of fact. Because the Court finds no municipal liability,
the Defendant is not prejudiced by the Court’s reference to the affidavit.
17
65
Cir. 2005). In Canton, the plaintiff, an arrestee who collapsed during transport to
the jail and again at the jail, was provided with no medical attention. Canton, 489
U.S. at 381-82. Canton provided evidence that, although shift commanders at the
city’s police stations “were authorized to determine, in their sole discretion, whether
a detainee required medical care . . . [they] were not provided with any special
training (beyond first-aid training) to make a determination as to when to summon
medical care for an injured detainee.” Id. This was sufficient for the Supreme Court
to determine that there might be grounds on which the plaintiff could prevail
against the city. Id. at 392.
In Young, the plaintiff’s son, a Providence, Rhode Island police officer, was
fatally shot by two on-duty police officers when he responded as an off-duty officer
to an emergency situation per the city’s “always armed/always on duty” policy.
Young, 404 F.3d at 9. Young provided evidence that, despite its policy, the city
provided no training in off-duty/on-duty misidentifications. Young, 404 F.3d at 17
and 27-28. This was sufficient for the First Circuit to reverse a grant of summary
judgment in the city’s favor. Id. at 29. But the First Circuit in Young also stated
that “a training program must be quite deficient in order for the deliberate
indifference standard to be met: the fact that training is imperfect or not in the
precise form a plaintiff would prefer is insufficient to make such a showing.” Id. at
27.
66
It is doubtful that any plaintiff can survive summary judgment on a claim for
failure to train where the individual defendants did receive the specific training at
issue, and it is merely the frequency of the training that is at issue.
b. Pattern of Similar Constitutional Violations
The Plaintiff points first to a 2001 performance evaluation of Lieutenant
Carver, which references the death of an inmate and implicitly criticizes her for a
“lack of timely suicide prevention training for staff.” Pl.’s Exh. X, ECF No. 93-25.
Taking all inferences in favor of the Plaintiff, this indicates that an inmate at the
jail committed suicide sometime around 2001, and that this may have been a result
of jail staff not receiving suicide prevention training. Indeed, the jail undertook no
suicide prevention trainings between October of 1995 and June of 2001.
Next, the Plaintiff points to the fact that there were 26 other “incidents of
suicidal behavior”18 between January of 2007 and October 5, 2009, when Lalli
attempted suicide. This number seems startlingly high for a modest-sized jail,19 and
might, if contextualized, give rise to questions regarding the efficacy of the jail’s
suicide prevention program. But without further information, it is not possible to
determine whether any of these incidents may be considered constitutional
violations similar to the one alleged in this case.
This denomination is lifted from the jail’s own spreadsheet, titled “Incidents of Suicidal
Behavior” and listing the dates and brief descriptions of incidents at the Jail from 2007-2011. See
Stevens Decl. ¶ 39, ECF No. 93-1; Pl.’s Exh. KK, ECF No. 94-10) (the spreadsheet.) The descriptions
of the “method” are all one or two words, and include “strangulation,” “cutting,” “hanging,”
“materials,” “head banging,” “stabbing,” and “poison.” It is unclear whether, by labeling the listed
events “incidents of suicidal behavior” the Jail intended to admit that each incident could be
considered an attempt at suicide or whether it was simply taking a broad view of all incidents of selfharm and crediting them as possible suicide attempts.
19
At the time of Lalli’s detention in 2009, the jail housed between 70 and 74 inmates.
18
67
For a suicide attempt to undergird a constitutional violation there must have
been unconstitutional conditions. Unlike the 2001 incident, the record contains no
facts that would support a conclusion that these events were a product of
unconstitutional conditions at the jail. The Plaintiff has not identified which officers
were on duty, nor what level of training they had at the time of the incidents. There
is also no evidence to suggest that the jail failed to conduct suicide screening of any
of these inmates prior to these incidents, or that jail personnel ignored signs of
suicidal distress. Nor do we know the outcome of any of these events. Lacking any
concrete situational facts, it would be mere speculation to conclude that deliberate
indifference caused any of the 2007-2009 incidents. In sum, the Plaintiff has
identified one possible prior similar constitutional violation, but not a pattern of
prior similar constitutional violations.
c. Causation
Because the Plaintiff has not demonstrated a pattern of prior similar
constitutional violations, she may defeat summary judgment only by producing
facts establishing that Lalli’s injuries were a “highly predictable consequence” of the
Municipal Defendants’ failure to train. See Connick, 131 S.Ct. at 1361.
The Municipal Defendants must have been aware that suicide was a grave
risk among the jail’s population, given the 26 incidents of suicidal behavior between
2007 and 2009. Accordingly, they had a duty to provide suicide prevention training
to the jail’s staff. This, they did. The Plaintiff thus bears the burden of showing that
the training that was provided was so deficient that it was highly predictable that
68
suicides would result. See Connick, 131 S.Ct. at 1361. Between January 1989 and
October 5, 2009, the jail provided 18 trainings, on average somewhat less than one
per year. At its worst, between October 1995 and June 2001, the jail skipped
trainings for a period of nearly six years. The jail also did not mandate that all of its
staff attend each training provided. For example, Officer Heath III managed to
receive only two trainings in 14 years, and Officer Wood received only five trainings
in 19 years. While this record suggests some negligence on the Municipal
Defendants’ part, a jury would have to speculate to conclude that it establishes
deliberate indifference. Other than offer an expert who opines that repetition of
training is key, the Plaintiff has provided no evidence that quantifies the effect this
level of training would have had on the jail staff’s ability to effectively respond to
suicidal detainees. On these facts alone, no rational jury could conclude that the
Municipal Defendants were deliberately indifferent.
2. Inadequate Policies, Procedures, Customs and Practices
Regarding Suicide Prevention
The Plaintiff’s second municipal liability claim targets the jail’s admission
that shift supervisors are allowed to take any action they deem appropriate
regarding inmates who are identified as being at risk of suicide. The Plaintiff has
put forward evidence from which a fact-finder could conclude that the risk that Lalli
would harm himself was glaringly obvious by any reasonable measure. Under such
circumstances, the Plaintiff claims, a jail cannot constitutionally have a practice of
allowing its shift supervisors to exercise their judgment regarding whether to place
the inmate on a suicide watch. It is unclear whether this can in fact stand alone as
69
a claim,20 but the Plaintiff has argued it on its own merits, so the Court analyzes it
as such.
The Constitution requires that the jail house its inmates in conditions that do
not put them at substantial risk of serious harm. The Plaintiff’s expert opines that,
because corrections officers are not mental health professionals, the jail can fulfill
its constitutional mandate only by requiring them to follow “strict instructions”
regarding their response to an inmate presenting a high risk of suicide. Hayes Aff.
¶ 54. For instance, he testifies, an explicit protocol should have directed the jail
personnel handling Lalli’s case to employ “effective suicide prevention techniques,
such as . . . a suicide smock, using continuous observation, removing items of selfharm and obtaining the services of a mental health provider.” Hayes Aff. ¶ 54.
This claim faces three hurdles. First, the Plaintiff must identify a municipal
policy or custom. 42 U.S.C. §1983. Second, the Plaintiff must demonstrate a prima
facie case that “the municipal action was taken with ‘deliberate indifference’ as to
its known or obvious consequences.” Bryan County Comm’rs, 520 U.S. at 407.
Finally, the Plaintiff must adduce sufficient facts for a fact-finder to conclude that
the policy was the “moving force behind the injury of which the plaintiff complains.”
Id. at 405.
In Canton, the plaintiff argued that police station “shift commanders were authorized to
determine, in their sole discretion, whether a detainee required medical care,” but were provided
with no special training to make that determination. Canton, 489 U.S. at 381-82. The Supreme
Court treated these premises together as a failure to train case, implying that the policy of allowing
shift commanders discretion might be unconstitutional only if the commanders lacked training that
would enable them to properly exercise their discretion. See id. at 388-912.
20
70
a. Policy, Custom, or Practice
The jail admits that, at the time of Lalli’s injury, it did not require its shift
supervisors to take any particular action with respect to inmates at risk of suicide.
DRPSAMF ¶¶ 295-296. But the Plaintiff does not identify whether this discretion is
the result of a decision made by any policymaking officials or whether instead it is
merely a convention at the jail. The Defendants assert that this is really a “custom
or practice” claim, in which case, the custom or practice must be so “persistent and
widespread” that it may be regarded as a policy. See Connick, 131 S.Ct. at 1359.
The Plaintiff has not presented evidence specifically aimed at demonstrating
that the jail’s practice of allowing its shift commanders discretion was long-standing
or that it was so widespread that it could be regarded as a “policy” or a “custom”
under Section 1983. See Connick, 131 S.Ct. at 1359; Bryan County Comm’rs, 520
U.S. at 404; Silva, 130 F.3d at 31; Bordanaro, 871 F.2d at 1156. But at the same
time, there seemed to be no confusion among the jail’s staff about the shift
supervisor’s discretion to determine the fate of at-risk inmates. For example, Officer
Stilkey was well aware that, though she performed Lalli’s intake, Sergeant Winslow
was responsible for completing the part of the Suicide Risk Assessment that
determined what level of intervention Lalli should receive. Taking all inferences in
favor of the Plaintiff, a reasonable fact-finder could conclude that everyone at the
jail understood that shift supervisors were to determine the treatment of at-risk
detainees and that it had been the jail’s practice for some time to afford them this
discretion.
71
b. Deliberate Indifference to Known or Obvious
Consequences
In order for liability to ensue, the jail’s practice of leaving discretion to shift
supervisors must have been undertaken with deliberate indifference as to its known
or obvious consequences. Bryan County Comm’rs, 520 U.S. at 407. The Plaintiff’s
claim of deliberate indifference rests on her argument that shift supervisors, who
are not trained mental health care professionals, should not be left with discretion
in how to handle suicidal inmates. But to the extent Sergeant Winslow and
Corporal Woll were trained in suicide prevention, the Municipal Defendants cannot
be deliberately indifferent for leaving discretion in their hands.
Sergeant Winslow was the shift supervisor during Lalli’s intake on October 3,
2009. Since 1999, he had received suicide prevention training seven times, and his
three most recent trainings were in September 2005, November 2006, and
December 2007. Though Sergeant Winslow skipped a training in 2008, his most
recent trainings were fairly close to the requirements for training endorsed by the
Plaintiff’s expert.
Corporal Woll was the shift supervisor when Lalli was readmitted to the jail
on October 5, 2009. He was a fairly recent graduate of the corrections course, which
he completed in 2007 and which included suicide prevention training, and he
received two additional suicide prevention trainings in November 2006 and
December 2007. Like Sergeant Winslow, the number and timing of Corporal Woll’s
trainings were not so infrequent the Municipal Defendants could be found
deliberately indifferent for leaving discretion in his hands.
72
c. Moving Force
The Plaintiff also failed to demonstrate that the Municipal Defendants’ policy
of leaving discretion in the hands of shift supervisors might be the “moving force”
behind Lalli’s injuries. To be sure, the Plaintiff can make a claim to but-for
causation: had Winslow and Woll not been given discretion, Lalli would have been
immediately assigned to suicide watch and this would have prevented his injuries.
But, unlike cases involving a municipal policy that directly violates constitutional
rights, the practice of allowing shift supervisors discretion in how to handle suicidal
inmates does not in itself promote constitutional violations. Cf. Haley v. City of
Boston, 657 F.3d 39, 52 (1st Cir. 2011) (alleged police department policy of
withholding helpful evidence from criminal defendants); Bordanaro, 871 F.2d at
1156 (alleged longstanding, widespread police practice of breaking down doors
without a warrant when arresting a felon).
At most, it represents a failure to interpose an additional procedural
safeguard. In a case where the government acknowledges the risk of inmate suicide
and puts in place some procedures to combat the risk, including inmate screening
and employee training, merely providing shift supervisors discretion fails to rise to
the level of causation required for municipal liability. See Bryan County Comm’rs,
520 U.S. at 405 (requiring the custom, policy, or practice to be the “moving force”
behind the injury); Canton, 489 U.S. at 391 (requiring the deficiency to be “closely
related to the ultimate injury”).
73
CONCLUSION
For the above-stated reasons, the Defendants’ motion for summary judgment
is GRANTED regarding Counts I and IV21 as to Defendants Knox County, Knox
County Jail, Knox County Sheriff’s Department, John Hinkley, Kathy Carver, and
Donna Dennison, regarding Counts II and IV as to Defendants Warren Heath IV
and Julie Stilkey, and regarding Count III as to all the Defendants, but DENIED
regarding Counts II and IV22 as to Defendants Angela Escorsio, Warren Heath III,
Christopher Truppa, Dane Winslow, Bradley Woll, and Robert Wood.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 30th day of September, 2013.
As to Defendants for whom no underlying claim for liability remains, the Court grants
summary judgment on the punitive damages claim stated in Count IV.
21
As to Defendants for whom an underlying claim for liability remains, the punitive damages
claim stated in Count IV remains alive. See Smith v. Wade, 461 U.S. 30, 56 (1983) (punitive damages
available under § 1983 where the defendant’s conduct was “motivated by evil motive or intent” or
“involves reckless or callous indifference to the federally protected rights of others”).
22
74
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?