Fether v. Frederick County, Maryland et al
Filing
98
MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 2/6/2015. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY FETHER, et al.
:
:
:
v.
:
:
:
FREDERICK COUNTY, MARYLAND, et al. :
Civil No. CCB-12-1674 (consolidated)
CCB-13-1083
MEMORANDUM
Justin Michael Lihvarchik was detained at the Frederick County Adult Detention Center
(“Detention Center”) early in the morning of June 10, 2009. A few hours after being placed into
his cell, he committed suicide by hanging himself by his shoelaces from the top bunk in his cell.
Plaintiff Nancy Fether—Lihvarchik’s mother and personal representative of his estate—brings
this consolidated civil rights lawsuit1 against four deputies from the Frederick County Sheriff’s
Office2; four correctional officers working at the Detention Center3; Frederick County Sheriff
Charles Jenkins; and Frederick County. Fether alleges defendants’ deliberate indifference to her
son’s serious medical needs resulted in her son’s death at the Detention Center. She also alleges
gross negligence. Presently pending is a motion for summary judgment filed by the deputies and
correctional officers. At this stage, the court considers only the Fourteenth Amendment claims
as to the eight defendants and the gross negligence claim as to the four deputy defendants.4 For
the reasons stated below, the motion will be granted in part and denied in part.
BACKGROUND
1
Fether filed separate lawsuits in the Circuit Court for Frederick County and this District. On April 11, 2013, the
state court case was removed to this court and docketed as WMN-13-1083. That case was reassigned to this judge
and consolidated with the case originally filed in this District (i.e., CCB-12-1674). CCB-12-1674 is the lead case.
2
They are Anthony LoRusso, Christopher Turvin, Kevin Poole, and Jeffrey Hyatt.
3
They are Orlando Rosa, Jesse Burris, Ryan Harris, and Gilbert Sackett.
4
Previously, the court bifurcated and stayed the Monell claim against Frederick County’s Sheriff in his official
capacity and Frederick County. (See Mem. Op. on Mot. Summ. J. 12-13, ECF No. 24.)
1
At around 1 a.m. on June 10, 2009, Debra Miller called 911 to report that a renter in her
basement had been “messing up the house” and was “tearing the driveway up” in his car. (Defs.’
Mot. Summ. J. Ex. A, 911 Call, at 0:17.)5 That renter was Justin Michael Lihvarchik—whose
tragic suicide is at the heart of this case.
Lihvarchik had been drinking with Miller and his girlfriend, Cara Dempsey, in his
basement apartment late on the night of June 9, 2009. At some point, Lihvarchik became
abusive towards both women. (See Defs.’ Mot. Summ. J. Ex. K, Miller Dep. 81, ECF No. 8512.) He had pushed and thrown them around, (911 Call, at 8:35), and had “already bruised
[Miller] one time” that night, (id. at 3:24). In Miller’s words, he was acting “like freaking nuts.”
(Id. at 4:02.)
Lihvarchik’s behavior in the kitchen was particularly disturbing. Earlier, while all three
were in the kitchen, Lihvarchik had grabbed a steak knife from a drawer and, without saying a
word, held it against his throat. (Miller Dep. 59.) He held the knife there until Miller and
Dempsey yelled at him to put it down. (Id.) He complied, but almost immediately after putting
the knife down, picked up a pizza cutter that was on the kitchen counter. (Id. at 60.) This time
Lihvarchik went further; he touched the pizza cutter to his neck and “drew it across his throat”
with enough force that blood was “dripping out” of his neck. (Id. at 62-63.) In Miller’s
estimation, this gesture left a mark that was four to five inches long. (Id. at 64.) On seeing this
gesture, Miller jumped up and pleaded for Lihvarchik to stop, telling him she was scared. (Id. at
62.) Meanwhile, Dempsey wrested control over the pizza cutter and placed a rag on his neck
“where it was bleeding.” (Id. at 63.) At no point did Lihvarchik resist or say a word. (Id.)
5
Defendants’ exhibit A is a CD containing audio files of both Miller’s 911 call and the 911 dispatcher’s radio
broadcasts. The court will refer to the former as “911 Call” and each of the thirty-five latter recordings by the ninth
through fourteenth digits of the filename, which appear to represent a timestamp, followed by “Radio.” For
example, the radio recording entitled, “2009-06-10-01-03-48-072-Recorder”—which the court interprets to mean a
radio recording made shortly before 1:04 a.m. on June 10, 2009—will be referred to as “01-03-48 Radio.”
2
Over the course of seventeen minutes, Miller recounted that evening’s events to the 911
operator. Several of Miller’s statements are particularly relevant. Just under six minutes into the
call, Miller—distressed by Lihvarchik’s behavior—stated, “he needs to get fixed. He needs an
intervention. He needs an intervention. He’s not right.” (911 Call, at 5:45.) Miller then said
that Lihvarchik “tried to cut his own throat with a pizza knife tonight.” (Id. at 5:55.) When the
operator asked whether “he cut himself when he did it,” Miller clarified, “yeah, you’ll see a knife
[inaudible] on his throat when you get him. . . . Believe me, it’s there.” (Id. at 6:27.) After
further describing how Lihvarchik had pushed her and Dempsey that night, Miller confirmed that
the pizza cutter Lihvarchik had used was still with him in the basement. (Id. at 10:27.) She
confirmed again that “he cut himself by that [pizza cutter]—yes he did!” (Id. at 10:37.) Just
over a minute later, as she was describing how she and Dempsey had “got hurt” by Lihvarchik,
Miller incredulously exclaimed, “he did it with a fucking pizza cutter! He cut himself with . . .
[inaudible].” (Id. at 12:30.) Several minutes later, the 911 operator confirmed that the deputies
“have him,” at which point the call ended. (Id. at 16:20.)
As Miller was communicating with the 911 operator, a police dispatcher was issuing
dispatches over the police radio.6 The first dispatch advised that “a 1056 subject there messing
up the house is reported to now be driving around outside the residence.” (01-02-18 Radio, at
0:15.) About five minutes later, the dispatcher reported—in clear, audible language—that
“apparently the male subject also tried to cut his throat this evening with a pizza cutter.” (01-0816 Radio, at 0:00.) Four minutes later, an unidentified deputy asked whether the suspect “ha[d]
any weapons or anything on him,” to which the dispatcher responded, “he had the pizza cutter
earlier—that should be it.” (01-12-13 Radio, at 0:07.) Between the dispatcher’s statements
6
As the deputies’ deposition testimony and the call and radio logs reflect, the information received by the 911
operator is not necessarily the same information that is broadcast out on the police radio by the dispatcher. (See
Defs.’ Mot. Summ. J. Ex J, Hyatt Dep. 91, ECF No. 85-11.)
3
regarding the unfolding events, several unidentified voices acknowledged the dispatcher’s
reports, asked clarifying questions, and provided reciprocating updates.
Some of the dispatcher’s statements were also sent, in text form, to the computers in the
deputies’ cars. (See Defs.’ Mot. Summ. J. Ex. I, Poole Dep. 82, ECF No. 85-10.) The
information the deputies “were receiving from the dispatcher as [they] responded to the scene”
included the following two text statements: “Caller states that subject tried to cut his throat with
a pizza cutter earlier tonight” and “has mark on neck from it.” (Id. at 82-83.)
* * *
Several deputies from the Frederick County Sheriff’s Office—all named in this lawsuit—
responded. With the exception of Deputy LoRusso, the deputies testified in their depositions that
they did not hear the dispatcher say Lihvarchik had tried to cut his own neck with a pizza cutter.
(See, e.g., Defs.’ Mot. Summ. J. Ex. G, Turvin Dep. 16, ECF No. 85-8.) According to Deputy
Turvin, he “didn’t hear that” statement because he was “concentrating on driving.” (Id. at 17.)
Deputy Poole did not recall hearing that Lihvarchik had tried to cut himself, but only “that he
had a pizza cutter”—it had “vaguely be[en] mentioned” on the radio. (Poole Dep. 19, 48.)
Deputy LoRusso denied being “told” that Lihvarchik had tried to cut himself with a pizza cutter,
(Defs.’ Mot. Summ. J. Ex. B, LoRusso Dep. 21, ECF No. 85-3), but then admitted he had heard
the dispatcher make that statement, (id. at 21-22). He noted, however, that, even though “the
dispatcher put that [statement] out . . . that doesn’t make it true.” (Id. at 21.)7
All four deputies arrived at Miller’s home within a five-minute span, beginning at 1:15
a.m. (Defs.’ Mot. Summ. J. Ex. H, Background Event Chronology, ECF No. 85-9.) Deputy
Turvin arrived first. He spoke briefly with Miller and Dempsey, who mentioned that Lihvarchik
7
Although the deputy defendants contest whether they actually heard all of these dispatches, they do not claim, for
instance, that the radio units in their police cruisers were off. Nor could they. Were that the case, they would not
have even known to report to the scene of the incident.
4
had a pizza cutter with him. (Turvin Dep. 21.) Deputy Turvin then proceeded downstairs to find
Lihvarchik. (Id.) Because Deputy Hyatt had arrived by this time, they entered Lihvarchik’s
basement unit together, where they found Lihvarchik, handcuffed him, and brought him out onto
the front porch. (Hyatt Dep. 38, 47; Turvin Dep. 22.) After assisting Deputy Turvin with the
arrest, Deputy Hyatt served primarily as “cover.”8 (Hyatt Dep. 51.)
Deputy Turvin began to interview Lihvarchik, asking him “what was going on[,]” “what
his intention was about a pizza cutter[,]” and whether he was trying to hurt himself.9 (Turvin
Dep. 25.) Lihvarchik denied having tried to hurt himself, and did not acknowledge anything
regarding a pizza cutter. (Id.) Although Deputy Turvin claimed he did not know Lihvarchik had
tried to cut himself with a pizza cutter, he stated he “gave [Lihvarchik] a suicide screening[.]”
(Id. 47.) Deputy Turvin said he had asked Lihvarchik questions about self-harm “I guess
because he had, they said he had a pizza cutter in his hand” and “[t]o see if he was suicidal.” (Id.
at 26, 37.) As part of this screening, Deputy Turvin observed Lihvarchik’s behavior and physical
condition. (See Id. 39.) He noticed Lihvarchik had an alcoholic “odor,” “slurred” speech, and
“bloodshot and glassy eyes.” (Id. at 37.) And he used his flashlight to “[l]ook[] at
[Lihvarchik’s] face and neck area” but did not recall seeing any marks. (Id. at 39, 47.)
At some point, Deputy Poole, who had arrived as back-up officer, joined Deputy Turvin
in questioning Lihvarchik. (Id. at 77.) Deputy Poole asked similar questions about whether he
had harmed himself recently. (Poole Dep. 56.) Like Deputy Turvin, Deputy Poole did not recall
being told that Lihvarchik had cut his neck with a pizza cutter, and instead “remember[ed] the
8
According to the law enforcement principle of “contact and cover,” the job of the officer playing the role of cover
“is to disengage and watch everybody else. It’s not to interview [the suspect] or anything like that. My job is to
make sure everything else is okay.” (Hyatt Dep. 51.) Deputy Hyatt played this role, standing “15 feet away just
watching everything else and making sure that nothing else happened.” (Id.)
9
The deputies had training and experience with suicidal individuals. They had received training in suicide
prevention and assessment and knew how to probe for suicidal intent. (See, e.g., Hyatt Dep. 11, 30-31; Turvin Dep.
5.) The deputies also understood the proper protocol for seeking an emergency petition. (See, e.g., Hyatt Dep. 18.)
And they had dealt with suicidal individuals numerous times in their careers. (See, e.g., Turvin Dep. 8.)
5
pizza cutter being brought up very—very vaguely.” (Id. at 17.) He also “tried looking at
[Lihvarchik’s] entire body” with a flashlight for injuries and saw no marks on his neck. (Id. at
46-47.) Deputy Poole did not speak to Miller or Dempsey. (Id. at 66.)
Meanwhile, Deputy LoRusso, the arresting officer, had arrived and was interviewing
Dempsey and Miller upstairs. Dempsey began by explaining the circumstances of the dispute
that had led Lihvarchik to assault her. (LoRusso Dep. 36.) After hearing her “blow by blow”
account, Deputy LoRusso asked Dempsey about the pizza cutter. (Id. at 38.) Dempsey told him
Lihvarchik’s use of the pizza cutter was a “tactic . . . to gain sympathy from her for whatever
purpose”—“in this case, because he wanted her to come to bed.” (Id. at 29.) Deputy LoRusso
learned that this “feigning some kind of . . . traumatic event” was a “common tactic” that
Lihvarchik had “previously done.” (Id. at 29-30.) Miller told LoRusso she basically agreed with
Dempsey’s account of the evening. (Id. at 57.)
Deputy LoRusso also interviewed Lihvarchik. (See id. at 69.) He asked questions like,
“are you injured” and “are you okay.” (Id.) Deputy LoRusso testified that he did not notice any
unusual marks on Lihvarchik’s neck when he visually inspected him. He explained that “it was
1 o’clock in the morning” and that, after Lihvarchik answered “medical screening-type
questions,” he saw no indication that Lihvarchik was injured, cut, or bleeding. (Id. at 20-21.) He
also stated the “collar was up” on Lihvarchik’s t-shirt, which would have obscured his neck. (Id.
at 32.)
Having determined there was enough to support a charge of criminal assault, Deputy
LoRusso transported Lihvarchik to the Detention Center. (Id. at 72.) The drive took about thirty
minutes. (Id. at 71.) During this time, he continued his conversation with Lihvarchik, who
exhibited “pretty calm” and “decent” behavior. (Id. at 72.)
6
Meanwhile, Deputy Turvin remained on the scene and asked Dempsey to fill out two
domestic violence forms. (Turvin Dep. 27.) Dempsey completed the forms in Deputy Turvin’s
presence. (Id. at 29.) After receiving the completed forms, Turvin “skimmed over” them for
completeness, but did not “read it verbatim.” (Id.) In the victim statement of the domestic
violence report, Dempsey wrote that “[Lihvarchik] cut the side of his throat with a pizza cutter
and begged me to go to bed.” (Defs.’ Mot. Summ. J. Ex. E, Frederick County Domestic
Violence Report, ECF No. 85-6.) On the domestic violence lethality screen form, Dempsey
marked “No” to ten of the eleven questions regarding Lihvarchik. (Defs.’ Mot. Summ. J. Ex. F,
Domestic Violence Lethality Screen, ECF No. 85-7.) The only question to which she marked
“Yes” was “Has he/she ever tried to kill himself/herself?” (Id.)
* * *
At around 2 a.m., Deputy LoRusso arrived at the Detention Center and dropped
Lihvarchik off at the central booking area. (LoRusso Dep. 111.) Deputy LoRusso never
communicated anything about the pizza cutter or any risk of suicide to Detention Center
employees.10 (LoRusso Dep. 156-57.) After handing Lihvarchik over, Deputy LoRusso began
completing paperwork associated with the arrest on a computer in the central booking area. (Id.
at 90, 94.) At some point, Deputy Turvin arrived, gave Deputy LoRusso the domestic violence
forms, and left without telling Deputy LoRusso about the contents of the forms. (Id. at 101-03.)
Deputy LoRusso glanced over the forms for completeness, but otherwise did not read them. (Id.
at 102.) Deputy LoRusso kept these forms and returned them to patrol headquarters at the end of
10
In his deposition, Correctional Officer Rosa confirmed the general absence of communication between deputies
and correctional officers when arrestees are brought to the Detention Center. When asked what conversations he
typically had with deputies during this process, he said, “[n]ot much, you know. [The deputy] just provides us the
paperwork and we input the information.” (Defs.’ Mot. Summ. J. Ex. L, Rosa Dep. 31, ECF No. 85-13.)
Correctional Officer Burris also confirmed that Deputy LoRusso “didn’t say anything to me” about Lihvarchik
attempting suicide. (Defs.’ Mot. Summ. J. Ex. P, Burris Dep. 61, ECF No. 85-16.)
7
his shift, at around 7 a.m.11 (LoRusso Dep. 112.) All told, Deputy LoRusso spent about forty
minutes at the Detention Center processing Lihvarchik’s arrest. (Id. at 100.)
Meanwhile, the Detention Center had begun processing Lihvarchik on its end.
Correctional Officer Burris conducted the intake assessment, while Correctional Officer Rosa,
the more senior correctional officer, supervised. (See Rosa Dep. 36-37; Burris Dep. 32.)
Lihvarchik indicated to Correctional Officer Burris that he had consumed a “few beers” but
otherwise did not have any life-threatening injuries or serious medical conditions. (Defs.’ Mot.
Summ. J. Ex. Q, Intake Assessment Form, ECF No. 85-17.) At some point during this process,
Officer Rosa took Lihvarchik’s fingerprints. (Rosa Dep. 43.)
Correctional Officers Rosa and Burris took photographs of Lihvarchik during intake.
Officer Burris took a standard booking photograph. (Pl.’s Opp’n Ex. 8, Booking Photo, ECF No.
92-8.) This photograph shows a bust shot of Lihvarchik, who is wearing a collarless grey t-shirt
and holding an expressionless pose. The photograph also shows a thin red mark that encircles
the base of his neck. Officer Rosa took a “tattoo photo,” (Pl.’s Opp’n Ex 9, Tattoo Photo, ECF
No. 92-9), to check for gang affiliations because Lihvarchik apparently had two “skull” tattoos
on his shoulders, (Defs.’ Mot. Summ. J. Ex. R, Central Booking Information Sheet, ECF No. 8518). This photograph shows substantially the same view of Lihvarchik as the booking photo:
Lihvarchik is wearing a t-shirt with his neck exposed and the red mark encircling his neck still
visible. Oddly, despite being called a “tattoo photo,” no tattoos are visible. Both Correctional
Officers Rosa and Burris stated they did not see the line across Lihvarchik’s neck at any point
that night. (Rosa Dep. 51, 53; Burris Dep. 38.)
11
The Detention Center does not receive these domestic violence forms. (LoRusso Dep. 113.) And, that night,
Deputy LoRusso did not share any police reports with Correctional Officers Rosa and Burris. (Burris Dep. 73.)
8
After Correctional Officers Rosa and Burris completed the intake process, Lihvarchik
asked Correctional Officer Rosa if he could take a nap somewhere before appearing before a
commissioner. (Rosa Dep. 67.) Responding to Lihvarchik’s request, Correctional Officer Rosa
took him to the holding unit, and placed him in a cell with a double bunk. (Id. at 68.) Before
returning to central booking, Correctional Officer Rosa stopped by the holding unit’s command
post to convey that Lihvarchik had been placed in a holding unit cell. (Id. at 71.) Because they
were working in central booking, Correctional Officer Rosa and Burris had no further
responsibility to supervise or monitor Lihvarchik once he had been dropped off in the holding
unit.12 (Burris Dep. 11.) Neither correctional officer returned to the holding unit that evening.
Correctional Officers Harris and Sackett were working the holding unit’s night shift that
evening. (Harris Dep. 18.) They knew Correctional Officer Rosa had placed Lihvarchik into a
cell in the holding unit, but did not know why. (Sackett Dep. 50.) And, although Detention
Center policy required them to walk through the holding area every twenty minutes to check on
detainees, (id. at 41), both correctional officers concede they did not do any walkthroughs that
night—with Correctional Officer Sackett even logging that he had completed the checks when,
in fact, he had not (id. at 45). Instead, both correctional officers remained in the command post,
where they completed “other job duties” and did “personal stuff” on the computer, including
playing fantasy sports on Yahoo. (Id. at 41.)
At about 5:30 a.m. on June 10, 2009, Correctional Officer Harris began walking around
the holding unit to feed detainees. (Harris Dep. 24-25.) On arriving at Lihvarchik’s cell, he
found Lihvarchik hanging from the top bunk by shoelaces tied around his neck. (Id. at 25.)
12
Correctional Officer Harris disagrees with this description. He claimed Detention Center policy and procedure at
the time meant that Correctional Officers Burris and Rosa should have been checking on Lihvarchik because he was
a “central booking offender.” (Defs.’ Mot. Summ. J. Ex. S, Harris Dep. 150-51, ECF No. 85-19.) But his
counterpart, Correctional Officer Sackett, agreed that correctional officers in holding would be—and were—
responsible for a detainee in Lihvarchik’s situation. (Defs.’ Mot. Summ. J. Ex. U, Sackett Dep. 51, ECF No. 85-21.)
9
Lihvarchik was dead. According to the autopsy completed a day later, Lihvarchik had
“committed suicide by hanging.”13 (Defs.’ Mot. Summ. J. Ex. W, Ali Aff. ¶ 11, ECF No. 8523.)
ANALYSIS
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphases added). Whether a fact
is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Accordingly, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.” Id. “A
party opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must view
the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in
his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted); see also Greater Balt.
Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 283 (4th Cir.
2013) (citation omitted). At the same time, the court must not yield its obligation “to prevent
factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526
(citation and quotation marks omitted).
As an initial matter, the court will grant summary judgment to defendants Hyatt, Sackett,
and Harris on all counts. In her opposition, Fether states that, based on the evidence gathered
13
In the opinion of the Assistant Medical Examiner who conducted the autopsy, the “reddish mark” on Lihvarchik’s
neck was “a bruise or contusion, and not a cut.” (Id. at ¶ 12.)
10
during discovery, Deputy Hyatt responded to the scene of Lihvarchik’s arrest but merely served
as “cover” for the other three officers involved in the arrest. (Pl.’s Opp’n 3 n.4, ECF No. 94.)
Fether also agrees that Correctional Officers Sackett and Harris were on holding unit duty when
Lihvarchik committed suicide but “were never told about Mr. Lihvarchik and never observed his
condition before his suicide.” (Id.) Accordingly, Fether does not—nor do the defendants—
oppose dismissal of these three defendants from this case.
As a result, the following claims remain for the court’s disposition: the federal Fourteenth
Amendment claims brought under section 1983 against Deputies LoRusso, Turvin, and Poole,
and Correctional Officers Rosa and Burris; and the state gross negligence claim against Deputies
LoRusso, Turvin, and Poole. The court considers these claims in turn.
I. Federal Fourteenth Amendment Claims
Fether brings Fourteenth Amendment claims under section 1983 against the five
remaining individual defendants. To prevail on a section 1983 claim, a plaintiff must prove (1)
that a defendant deprived her “of a right secured by the Constitution or laws of the United
States” and (2) that such deprivation was committed under the color of state law. Phillips v. Pitt
Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). The defendants do not contest the second
prong, but instead argue they did not engage in unconstitutional conduct.
As a threshold matter, the court will dismiss as duplicative the Fourteenth Amendment
claims asserted under the “special relationship” and “state created danger” theories. The
defendants argue the former count “state[s] no cause of action separate from or greater than the
Fourteenth Amendment due process claim[,]” (Defs.’ Mot. Summ. J. 62, ECF No. 85-1), and the
latter count is “inapplicable to this case because there is no evidence that a third party harmed
Mr. Lihvarchik,” (id. at 65). By failing to respond to these colorable arguments in her
11
opposition, Fether abandoned those claims. See, e.g., Mentch v. E. Sav. Bank, FSB, 949 F. Supp.
1236, 1247 (D. Md. 1997) (“[Plaintiff] abandoned her . . . claim by failing to address [it] in her
opposition to [defendant]’s motion for summary judgment, or to offer clarification in response to
[defendant]’s reply brief.”) Accordingly, only Fether’s Fourteenth Amendment due process
claim remains for the court’s consideration.
Fether, as representative of a pretrial detainee, can “make[] out a [Fourteenth
Amendment] due process violation if [s]he shows ‘deliberate indifference to serious medical
needs’ within the meaning of Estelle v. Gamble, 429 U.S. 97 (1976).” Martin v. Gentile, 849
F.2d 863, 871 (4th Cir. 1988) (citations omitted).14 The Estelle standard—as elaborated by the
Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994)—requires proof (1) “that the
deprivation of [a] basic human need was objectively sufficiently serious” and (2) “that
subjectively the officials act[ed] with a sufficiently culpable state of mind.” De’lonta v. Johnson,
708 F.3d 520, 525 (4th Cir. 2013) (emphases and alterations in original) (quoting De’lonta v.
Angelone, 330 F.3d 630, 634 (4th Cir. 2003)). Fether easily satisfies the first prong because “[a]
substantial risk of suicide is certainly the type of ‘serious harm’ that is contemplated by . . .
Farmer.” Brown v. Harris, 240 F.3d 383, 389 (4th Cir. 2001).
To satisfy the second prong, Fether must prove “deliberate indifference” on the part of
the defendants. See Farmer, 511 U.S. at 837; Short v. Smoot, 436 F.3d 422, 427 (4th Cir. 2006).
That is, she must prove that the defendants “actually knew of and disregarded” Lihvarchik’s
substantial risk of suicide. Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004)
(emphases in original) (quoting Young v .City of Mount Rainier, 238 F.3d 567, 575-76 (4th Cir.
2001)). Because this is “a higher standard for culpability than mere negligence or even civil
14
Further, a pretrial detainee, who is presumed innocent of any crime, “may not be subjected to any form of
‘punishment.’” Id. at 870 (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
12
recklessness,” Jackson v. Lightsey, --- F.3d. ---, No. 13-7291, 2014 WL 7210989, at *5 (4th Cir.
Dec. 18, 2014), defendants must have both “be[en] aware of facts from which the inference
could be drawn that a substantial risk of [suicide] exist[ed],” and “draw[n] th[at] inference.”
Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir. 2014) (quoting Farmer, 511 U.S. at 837).
Despite this “very high standard[,]” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), actual
knowledge “is a question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence[,]” Parrish, 372 F.3d at 303 (quoting Farmer, 511 U.S. at 842).
Here, it is uncontested that none of the defendants took any action to prevent Lihvarchik
from committing suicide. But the defendants argue they did not have actual knowledge under
the Farmer standard. Accordingly, the court must answer the following: does a genuine dispute
exist as to whether the defendants (1) were aware of facts from which they could infer that
Lihvarchik was suicidal, and (2) did in fact make that inference? If the answer to each question
is yes, then summary judgment must be denied. Because it is undisputed that Deputy LoRusso
did not relay any information regarding Lihvarchik’s suicide risk to any of the correctional
officers—and, therefore, the two groups of defendants possessed different knowledge—the court
considers the two groups separately, starting with the correctional officers.
A. Correctional Officers Rosa and Burris
As already noted, Deputy LoRusso did not relay any information regarding the context of
Lihvarchik’s arrest to anyone at the Detention Center. Deputy Turvin similarly failed to relay
Dempsey’s statements regarding Lihvarchik’s suicidal behavior contained in the domestic
violence forms. The record reveals no direct evidence that Correctional Officers Rosa and Burris
had actual knowledge of Lihvarchik’s suicide risk; Lihvarchik did not make any statements
during intake indicating past or present suicidal acts or intentions. The circumstantial evidence
13
upon which the correctional officers’ actual knowledge could be inferred is similarly lacking.
The correctional officers saw nothing out of the ordinary in Lihvarchik’s booking; they had no
reason to question Lihvarchik more extensively as he was being booked. The only evidence
from which they could have learned about Lihvarchik’s suicide risk is their observation of
Lihvarchik while they processed him. And what the correctional officers observed is reflected in
the two photographs taken of Lihvarchik. The court considers this visual evidence here. See
Scott, 550 U.S. at 380-81 (expressly permitting, on review of denial of motion for summary
judgment, reliance on videotape evidence).
Although the photographs show a red mark around Lihvarchik’s neck, this evidence does
not create a genuine dispute as to whether Correctional Officers Rosa and Burris had actual
knowledge of Livharchik’s suicidal tendencies. It is true that Correctional Officers Rosa and
Burris had an opportunity to observe Lihvarchik’s appearance while processing him. At some
point during that process, they would have seen Lihvarchik’s neck. And, although Correctional
Officers Rosa and Burris claim not to have seen the red mark on his neck, the court assumes, for
the purposes of this motion, that they did see that mark. See, e.g., Brown, 240 F.3d at 390
(crediting, on review of grant of judgment as a matter law, probation officer’s testimony that she
informed correctional officer that detainee was suicidal and had attempted suicide one week
earlier, even though correctional officer denied such knowledge). But no reasonable factfinder
could conclude that they also drew an inference that Lihvarchik was suicidal based solely on the
observation of that mark. Assuming Correctional Officers Rosa and Burris “had noticed the [red
mark], [their] failure to recognize that it was the result of a previous suicide attempt amount[s] at
most to simple negligence.” Ward v. Holmes, 28 F.3d 1212, at *5 (4th Cir. 1994)
14
(unpublished)15; see also Freedman v. City of Allentown, 853 F.2d 1111, 1116 (3d Cir. 1988)
(holding that a prison official’s failure to recognize “suicide hesitation cuts” on a prisoner’s
wrists, elbows, and neck, “without more, amount[ed] only to negligence”). Absent evidence
showing that they actually drew the inference that Lihvarchik was suicidal, Correctional Officers
Rosa and Burris did not, as a matter of law, act with deliberate indifference towards Lihvarchik’s
risk of suicide. Accordingly, the court will grant summary judgment in favor of defendants Rosa
and Burris on this count.
B. Deputies LoRusso, Turvin, and Poole
The deputies’ situation is different. The record reveals that, before the deputies arrived at
the scene of Lihvarchik’s arrest, radio messages from the 911 dispatcher clearly and audibly
stated Lihvarchik had cut himself with a pizza cutter. Furthermore, the dispatcher sent text
communications conveying the same information to the computers in the deputies’ police cars.
Importantly, the dispatcher’s communications were not made on a one-way channel; throughout
the radio recordings, the dispatcher engaged in an ongoing conversation with the deputies who
were responding to the scene. Upon arrival, the deputies interviewed Lihvarchik about whether
he had or would hurt himself and inspected him for signs of self-harm. They were close enough
to Lihvarchik to detect an odor of alcohol and, together, had numerous opportunities to observe
not only Lihvarchik’s appearance, but also his behavior. Finally, Deputy Turvin had the
domestic violence forms, which explicitly indicated that Lihvarchik had previously tried to kill
himself and that he had cut his throat with a pizza cutter that night. In short, the deputies had a
much richer context from which an inference might be drawn that Lihvarchik was suicidal.
In light of that context, a genuine dispute exists as to whether the deputies actually drew
the inference that Lihvarchik was suicidal. On the one hand, evidence in the record suggests the
15
Unpublished cases are cited for the soundness of their reasoning, not for any precedential value.
15
deputies did not have actual knowledge of such a risk. In their depositions, the deputies claim
they neither saw the red mark on Lihvarchik’s neck nor inferred from that mark—or, for that
matter, any other information they had at the time—that Lihvarchik was suicidal. And the record
reveals no direct evidence of Lihvarchik’s suicide risk. On the other hand, Lihvarchik did not
need to state explicitly that he was suicidal for the deputies to have gained actual knowledge of
his suicidal tendencies, because actual knowledge can be proven with circumstantial evidence.
See Parrish, 372 F.3d at 303. And the circumstantial evidence here could lead a reasonable
factfinder to conclude the deputies did in fact draw that inference based on the radio and text
dispatches, their interview and visual inspection of Lihvarchik, and Lihvarchik’s behavior. The
deputies deny having actually made such an inference. But a reasonable factfinder could reach
the opposite conclusion. And “[a]lthough a jury ultimately may find that the [deputies]’ version
of the events is more credible, [the court] is not permitted to make such credibility
determinations” here. Meyers v. Balt. Cnty., Md., 713 F.3d 723, 733 (4th Cir. 2013).
In their reply brief, the deputies make the additional argument that, even if they had some
inkling of suspicion that Lihvarchik was at risk of self-harm and actually made such an
inference, they would still avoid liability if they “responded reasonably to the risk of which
[they] knew”—i.e., in light of “everything that [they] w[ere] told and observed.” Brown, 240
F.3d at 390. But under any reasonable understanding of what the deputies knew, their response
was unreasonable. They claim they “did indeed take action in response to the risk as they
perceived it,” (Defs.’ Reply 17, ECF No. 97), but do not specify what action they took. Instead,
the record reflects that none of the deputies took even the minimal step of mentioning to
Detention Center staff that Lihvarchik had used a pizza cutter on himself that night. The
deputies rely on Brown, but that case is distinguishable. In Brown, the Fourth Circuit held that
16
the two defendants responded reasonably because one “immediately plac[ed] [the detainee] on
‘medical watch,’” 240 F.3d at 390, and the other “took deliberate, precautionary steps to reduce
the risk that [the detainee] would commit suicide[,]” id. at 391. The deputies’ responses come
nowhere near to those made in Brown.
Based on the record, a reasonable factfinder could conclude the deputies did in fact have
actual knowledge of Lihvarchik’s suicide risk. And, inaction in light of that risk would
constitute deliberate indifference.
C. Qualified Immunity as to Deputies LoRusso, Turvin, and Poole
The defendants also invoke the doctrine of qualified immunity. Government actors are
entitled to qualified immunity from liability for civil damages “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)) (internal quotation marks omitted). Because a reasonable factfinder
could conclude that Deputies LoRusso, Turvin, and Poole were deliberately indifferent to
Lihvarchik’s risk of suicide, and therefore deprived Lihvarchik of his Fourteenth Amendment
rights, the court must determine whether they are nevertheless entitled to qualified immunity on
the grounds that they did not violate any clearly established rights. The court concludes they are
not.
“To be clearly established, a right must be sufficiently clear that every reasonable official
would [have understood] that what he is doing violates that right,” and “existing precedent must
have placed the statutory or constitutional question beyond debate.” Reichle v. Howards, 132 S.
Ct. 2088, 2093 (2012) (quotation marks and citations omitted). Whether a right was clearly
established is “essentially [a] legal question” to be answered by the court. Mitchell v. Forsyth,
17
472 U.S. 511, 526 (1985). In assessing whether a right is clearly established, this court looks to
case law from the Supreme Court, the Fourth Circuit, and, sometimes, the Maryland Court of
Appeals. See Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999).
The right at issue here was clearly established by Supreme Court and Fourth Circuit
precedent existing as of 2009. The Fourth Circuit’s decision in Gordon v. Kidd, 971 F.2d 1087
(4th Cir. 1992)—a section 1983 jail suicide case—is illuminating. In Gordon, the Fourth Circuit
began by observing that “[t]he law of this circuit governing § 1983 actions arising out of jail
suicides is clear.” Id. at 1094. In addressing defendants’ qualified immunity argument, the
Fourth Circuit stated that the Supreme Court’s Estelle decision, a Fifth Circuit decision, and two
Fourth Circuit decisions “clearly establish[ed] the constitutional duty of a jailer to take
reasonable measures to protect a prisoner from self-destruction when the jailer knows that the
prisoner has suicidal tendencies.”16 Id. at 1097. A reasonable deputy in the deputy defendants’
position would have known that failing to act in light of Lihvarchik’s known suicide risk would
be a violation of his constitutional rights. Accordingly, the court concludes the deputy
defendants are not entitled to summary judgment on the basis of qualified immunity at this time.
II. State Gross Negligence Claim
Also remaining is Fether’s gross negligence claim against Deputies LoRusso, Turvin, and
Poole. Defendants make two arguments regarding this claim in their motion for summary
judgment: first, that it is barred because Fether failed to provide notice to the State of Maryland
under the Maryland Tort Claims Act (“MTCA”), (see Defs.’ Mot. Summ. J. 67-69); and, second,
that Fether’s “allegations are insufficient to assert gross negligence as a matter of law,” (id. at
16
Although the deputy defendants were not necessarily Lihvarchik’s “jailers,” the Fourth Circuit has “recognized
that where police know that a pretrial detainee is on the verge of suicide, that psychological condition can constitute
the kind of serious medical need to which state officials must, under the due process clause, not be deliberately
indifferent.” Buffington v. Balt. Cnty., Md., 913 F.2d 113, 120 (4th Cir. 1990) (emphasis added).
18
71). But the state court already addressed both arguments, holding that Fether’s claim
“adequately plead[s] gross negligence” and that her “failure to provide timely notice as required
by the MTCA does not bar [her] claim for gross negligence against the Defendant Deputies.”
(Pl.’s Opp’n Ex. 13, Op. and Order on Mot. Dismiss, Fether v. State of Maryland, et al., Case
No. 10-c-12-1716, Mar. 27, 2012, ECF No. 92-13.) This court agrees with, and has no need to
reconsider, the state court’s determinations.17
The deputy defendants also invoke common law public official immunity in their reply
brief. But “[t]he ordinary rule in federal courts is that an argument raised for the first time in a
reply brief or memorandum will not be considered.” Clawson v. FedEx Ground Package Sys.,
Inc., 451 F. Supp. 2d 731, 734 (D. Md. 2006) (citing United States v. Williams, 445 F.3d 724,
736 n.6 (4th Cir. 2006)). No compelling reason exists to make an exception to that rule here.
Accordingly, the court considers the merits of Fether’s gross negligence claim. In doing
so, the court recognizes that “[w]hile the ‘deliberate indifference’ standard under federal law
may have similarities to the ‘gross negligence’ standard under state law, they are not fungible.”
Rodriguez, 98 A.3d at 399-400. Under Maryland law, gross negligence is “an intentional failure
to perform a manifest duty in reckless disregard of the consequences as affecting the life or
property of another, and also implies a thoughtless disregard of the consequences without the
exertion of any effort to avoid them.” Barbre v. Pope, 935 A.2d 699, 717 (Md. 2007) (quoting
Liscombe v. Potomac Edison Co., 495 A.2d 838, 846 (Md. 1985)). “[B]ecause of the
‘troublesome’ factual problem of trying to differentiate between simple and gross negligence, the
issue is usually one for the jury, not the court.” Holloway-Johnson v. Beall, 103 A.3d 720, 735
(Md. Ct. Spec. App. 2014) (quoting Rodriguez, 98 A.3d at 391). Here, depending on the
17
At any rate, defendants’ arguments would fail. Fether adequately pled gross negligence. And, having done so,
Fether did not need to provide early notice under the MTCA. See Barbre, 935 A.2d at 719.
19
resolution of the genuine factual disputes mentioned above, a reasonable factfinder could
conclude that each of the deputies were grossly negligent. Accordingly, Deputies LoRusso,
Turvin, and Poole are not entitled to summary judgment on Fether’s gross negligence claim.
CONCLUSION
As threshold matters, defendants Hyatt, Harris, and Sackett will be granted summary
judgment on all claims, and the counts alleging Fourteenth Amendment violations under the
“special relationship” and “state created danger” theories will be dismissed as duplicative.
Because no genuine dispute exists as to whether Correctional Officers Rosa and Burris were
deliberately indifferent to Lihvarchik’s substantial risk of suicide, summary judgment will be
granted in their favor on the remaining Fourteenth Amendment claim. But a genuine dispute
remains as to whether Deputies LoRusso, Turvin, and Poole were deliberately indifferent to that
risk, and because the right at issue was clearly established at the time of their conduct, summary
judgment will be denied as to them on that claim. And because a genuine dispute likewise
remains as to whether Deputies LoRusso, Turvin, and Poole were grossly negligent, summary
judgment will be denied on that claim.
A separate Order follows.
February 6, 2015
Date
/S/
Catherine C. Blake
United States District Judge
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