Francisco et al v. Corizon Health, Inc. et al
Filing
137
OPINION, MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Defendants Rhodes, England, Griffin, and Scallion's Motion for Summary Judgment [Doc. No. 98 ], is Granted. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 12/27/2022. (HMA)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANNE FRANCISCO, et al.,
)
)
Plaintiff,
)
)
v.
)
)
CORIZON HEALTH, INC., et al., )
)
Defendants.
)
Case No. 4:17CV1455 HEA
OPINION, MEMORANDUM AND ORDER
The Defendants Rhodes, England, Griffin, and Scallion’s have filed their
Motion for Summary Judgment [Doc. No. 98]. The Plaintiffs have filed their
response in opposition. The Court has considered the filings and all applicable law.
For the reasons set forth below, the Motion will be granted.
Background
On May 6, 2017, Plaintiffs filed this action pursuant to 42 U.S.C. §1983
alleging violations of the Eighth Amendment. The Plaintiffs assert claims that
Defendants were deliberately indifferent to Plaintiffs’ decedent, Joshua Francisco
in violation of Joshua’s Eighth Amendment right to be free from cruel and unusual
punishment. The claims against the moving Defendants are brought against them
in their individual capacities.
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Summary Judgment Standard
“Summary judgment is proper where the evidence, when viewed in a light
most favorable to the non-moving party, indicates that no genuine [dispute] of
material fact exists and that the moving party is entitled to judgment as a matter of
law.” Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir.
2007); Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are
factual disputes that may affect the outcome of the case under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute of material fact is genuine if the evidence would allow a reasonable jury to
return a verdict for the non-moving party. Id. “The basic inquiry is whether it is so
one-sided that one party must prevail as a matter of law.” Diesel Machinery, Inc. v.
B.R. Lee Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation
marks and citation omitted). The moving party has the initial burden of
demonstrating the absence of a genuine issue of material fact. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). Once the
moving party has met its burden, “[t]he nonmovant must do more than simply
show that there is some metaphysical doubt as to the material facts and must come
forward with specific facts showing that there is a genuine issue for trial.” Id.
(internal quotation marks and citation omitted).
To survive a motion for summary judgment, the “nonmoving party must
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‘substantiate his allegations with sufficient probative evidence [that] would permit
a finding in [his] favor based on more than mere speculation, conjecture, or
fantasy.’” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003)
(quoting Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)). The
nonmoving party may not merely point to unsupported self-serving allegations but
must substantiate allegations with sufficient probative evidence that would permit
a finding in his or her favor. Wilson, 62 F.3d 237, 241 (8th Cir. 1995). “The mere
existence of a scintilla of evidence in support of the [nonmoving party's] position
will be insufficient; there must be evidence on which the jury could reasonably
find for the [nonmovant].” Anderson, 477 U.S. 242 at 252; Davidson & Associates
v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). “Simply referencing the complaint, or
alleging that a fact is otherwise, is insufficient to show there is a genuine issue for
trial.” Kountze ex rel. Hitchcock Foundation v. Gaines, 2008 WL 2609197 at *3
(8th Cir. 2008).
Facts and Background
Joshua David Francisco (“Francisco”) committed suicide on October 22,
2014 while incarcerateat Farmington Correctional Center.
Corizon is the contracted medical provider responsible for providing medical
care and treatment to the MDOC inmates. Corizon employed qualified mental
health professionals (QMHP) at FCC. The QMHPs carried a caseload of mental
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health chronic care clients. The offenders’ mental health issues were assessed and
treated and the QMHPs also conducted weekly group meetings and did the rounds
once a week in the segregation unit.
On October 21, 2014, the day before Mr. Francisco committed suicide, he
denied to mental health staff that he was having any mental health concerns or
complaints and was deemed by mental health staff to be functioning adequately.
On October 21 in the morning, Dr. McIntyre did an Ad Seg “round” which was a
couple of minutes at the cell door. She did not assess Joshua’s willingness to go to
SRU. The complete note states: “Offender denied any mental health concerns or
complaints at this time. Appears to be functioning adequately in segregation.”
Ms. Skaggs had an appointment scheduled with Francisco for 3 days later,
on October 24, 2014.
On October 22, 2014, Jason England was working as a sergeant at
Farmington Correctional Center. On October 22, 2014, England worked from 7:30
a.m. to 3:30 p.m. As a sergeant, his duties in housing unit 5 were to “[m]aintain
safety and security for all offenders as well as staff.” England had contact with Mr.
Francisco only on October 22, 2014. England went to the cell to talk to Francisco
because there was a report that Francisco’s cellmate had said Francisco was
suicidal. England went to Francisco’s cell door and Francisco said he was worried
that England was going to take the cellmate’s word that he (Francisco) was suicidal
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and put Francisco on suicide watch. Francisco told England that he was not
suicidal and that he had no reason to kill himself and that he was okay. England
admitted he could see Joshua “had been crying a little bit ...,” had “a sad look
... worried ...,” and heard Joshua’s voice “breaking up ... he was very
upset ... I did see a tear in his eye. He was tearing up ...” England admitted the
cellmate told England a string had been found in the cell by a prior shift of officers.
England had Francisco and his cellmate restrained behind their backs with
handcuffs by other officers so that a cell search could be conducted. Other officers
brought Francisco and his cellmate out of the cell and searched the cell.
Sometimes inmates will make up things to try to get the other offender out
of the cell. Francisco and his cellmate were also strip searched, their clothes were
checked and nothing was found. The officers conducting the search “could not find
any string, any noose, anything to back up the cellmate’s story that Francisco was
suicidal. While Francisco was standing outside the cell, England spoke with him
for about five minutes. England described Francisco’s demeanor as just normal as
could be. Francisco told England four of five times that he was not suicidal and
England believed that he was fine, so Francisco was placed back in the cell.
England testified that if Francisco had said he was suicidal or led England to
believe he was suicidal, he would have placed Francisco in a suicide cell. England
received no training by Corizon instructing him that if the cellmate of an offender
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said the offender was suicidal, that he should take the word of the cellmate and put
the offender on suicide watch.
In 2014, Correctional Officer I Griffin worked in the Administrative
Segregation unit, C Wing, as a wing officer. Griffin’s duties included making
walks twice an hour to check on the well-being of the offenders in the C wing.
Corrections Officer I Joseph Gooch was responsible for the offenders in the
D wing where Francisco was housed. On October 22, 2014, Griffin was in
Sergeant England’s office preparing paperwork for the 11:15 a.m. custody count
when the sergeant received a call from officer Gooch. Sergeant England left the
office to go to D wing. Griffin went over to D wing too because when an officer
calls for a sergeant, it may indicate there is a problem and the sergeant may need
assistance. When Griffin arrived, he saw England speaking with Francisco at the
cell door. Griffin heard Francisco’s cellmate say that he wanted Francisco out of
the cell because “he’s driving me nuts and he’s suicidal.” Griffin spoke with
Francisco, and he asked him if he was suicidal. Francisco denied being suicidal, so
Griffin did not place him on suicide watch. Griffin recalled that Francisco was
aggravated because Francisco had been asked more than once whether he was
having any thought of self-harm. “If Francisco had given any indication that he
was having thought of self-harm, he would have been placed on watch
immediately.”
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On October 22, 2014, Griffin did not see Francisco crying and did not see
unusual behavior by Francisco. With regard to training, in a situation where an
inmate says his cellmate is suicidal, Griffin understood his training to require him
to not take the cellmate’s word but to talk directly with the offender and to ask the
offender whether he was suicidal. Griffin recalled that Corizon provides follow-up
training after the original training and it was his understanding of that training that
if an inmate’s cellmate said the inmate was suicidal, that alone was not sufficient to
place the inmate on suicide watch. The inmate needed to exhibit signs of being
suicidal.
Kim Scallion was the Correctional Case Manager II (“CCM”) with
FCC. As a CCM, Scallion made rounds at least once a day and spoke to each
offender to see if they needed anything. In 2014, Scallion worked from 7:00 a.m.
to 3:30 p.m.
Mental Health staff made their rounds in Administrative Segregation at least
once a week. As a CCM, Scallion could not perform mental health evaluations.
On October 22, 2014, Francisco’s cellmate Earnest told Scallion that
Francisco was suicidal. In response, Scallion went to speak with Francisco.
Francisco promised her that he was not going to hurt himself. Cellmate Earnest did
not say anything when Francisco told Scallion “I’ll be fine.” Francisco never said
to Scallion that he was going to harm himself and he did not show any signs that
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his mood had changed drastically. In the time that Scallion had seen Francisco at
FCC, she observed gradual improvements in Francisco’s behavior. The only time
she saw agitation was the day he did not want to go to 9-house (SRU). Scallion
recalled that Francisco told her he did not want to go the SRU unit. He told her the
reason that he did not want to go to SRU was because he didn’t feel secure on his
medication.
Scallion understood her role as a CCM was to ask the offender if he is
suicidal and to look for signs of suicidal behavior. She first testified: “Q. ... based
on your understanding of the policies and your training did you believe it was your
role as a correctional case manager to determine whether or not somebody should
go on suicide watch? A. No.” She also testified: “Q. So it was your role as a
correctional case manager you believed based on your training and the policies you
understood to make an investigation? A. Not really”
Francisco could have requested a Medical Services Request (MSR) every
night during medications pass to request to be seen by mental health staff.
Scallion recalled that Francisco’s cellmate Earnest said something about a
noose being found. Scallion never saw a noose or anything that looked like a noose
taken from the cell that Earnest and Francisco were in. Scallion’s Supervisor
Functional Unit Manager Greg Rhodes reviewed the video of the cell search and
saw that nothing was found that resembled a noose. Scallion and Rhodes decided
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not to remove Francisco from the cell because by policy he did not say he was
going to harm himself. Scallion knew that offenders will say things that are not
true about their cellmates to get their current cellmate moved out of the cell.
Scallion believed that Francisco’s cellmate Earnest was being manipulative
when he said Francisco was suicidal. Scallion believed that there was not a threat
of suicide because Francisco denied it. Scallion’s understanding of the policy was
that if the offender said he was suicidal or you believed the offender to be suicidal,
you would move him out of the cell. Scallion did not understand the suicide
intervention policy to require that if an offender said another offender was suicidal
that she should call mental health.
In 2014 Greg Rhodes was working as a Functional Unit Manager at FCC.
On October 22, 2014, he worked from 7:30 to 4:00 p.m. Rhodes had contact with
Francisco during a hearing when it was decided that Francisco would be released
from protective custody. During the hearing, Rhodes recalled that Francisco was
calm and “real polite.”
The committee that Rhodes was on recommended Francisco be transferred
to the SRU Social rehabilitation unit for his mental health needs.
On October 22, 2014, the decision not to place Francisco on suicide watch
came after Rhodes checked with the other case managers and Scallion. Rhodes
believed that Scallion would have placed Mr. Francisco on suicide watch if she had
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any inkling at all that he was suicidal because she knew the offenders really well.
Rhodes did not believe that Mr. Francisco was going to commit suicide. Rhodes
reviewed the video of the cell search with Miss White. Rhodes had Miss White
watch the video with him so they could both make sure that they did not see
anything coming out of the cell. “I didn’t want to miss anything.” No noose was
seen in the cell and no staff reported seeing a noose in Francisco’s cell. Rhodes
concluded after talking with the two case managers that all they had was a false
report of a noose being taken out of the cell. Rhodes asked Kim Scallion if she had
anything else and she did not. Rhodes believed that the statement by Francisco’s
cellmate that Francisco was suicidal was a ploy to get Francisco out of the cell or
get the cellmate out of the cell. Rhodes believed that the cellmate “just wanted to
get rid of his cellmate.” Rhodes believed that staff had checked on Mr. Francisco
and didn’t see anything wrong with Francisco. Rhodes believed that an offender
made a false statement to get another offender moved.
Discussion
Plaintiffs assert that the Defendants’ conduct amounted to deliberate
indifference to Francisco’s serious medical needs in violation of the Eighth
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Amendment. Defendants argue that they are entitled to qualified immunity because
no evidence exists to support the claim that they were deliberately indifferent.
“The doctrine of qualified immunity protects government officials ‘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)). “To prevail against a claim of qualified
immunity, a plaintiff must show (1) that the facts alleged or shown by the plaintiff
make out a constitutional violation, and (2) that the constitutional right allegedly
violated was ‘clearly established.’ ” Swearingen v. Judd, 930 F.3d 983, 987 (8th
Cir. 2019) (quoting Pearson, 555 U.S. at 232). The Court may address either
question first. Pearson, 555 U.S. at 236.
The Eighth Amendment requires prison officials to provide inmates with
medical care. Laughlin v. Schriro, 430 F.3d 927, 928 (8th Cir. 2005) (citing Estelle
v. Gamble, 429 U.S. 97, 103 (1976)). “[D]eliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104 (internal citations
and quotations omitted).
“A plaintiff claiming deliberate indifference must establish objective and
subjective components.” Thompson v. King, 730 F.3d 742, 746 (8th Cir. 2013)
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(citing McRaven v. Sanders, 577 F.3d 974, 980 (8th Cir. 2009)). “The objective
component requires a plaintiff to demonstrate an objectively serious medical
need,” while “[t]he subjective component requires a plaintiff to show that the
defendant actually knew of, but deliberately disregarded, such need.” Id. (citing
McRaven, 577 F.3d at 980). “Deliberate indifference is ‘akin to criminal
recklessness,’ something more than mere negligence; a plaintiff must show that a
prison official ‘actually knew that the inmate faced a substantial risk of serious
harm’ and did not respond reasonably to that risk.” A.H. v. St. Louis County, 891
F.3d 721, 726 (8th Cir. 2018) (quoting Drake ex rel. Cotton v. Koss, 445 F.3d
1038, 1042 (8th Cir. 2006)).
The Eighth Circuit has recognized that a risk of suicide by an inmate is a
serious medical need. See Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000)
(citing Rellergert v. Cape Girardeau County, 924 F.2d 794 (8th Cir. 1991)).
Defendants do not dispute that risk of suicide is a serious medical need.
To establish the subjective component of his deliberate-indifference claim,
Plaintiffs must demonstrate that the Defendants “ ‘actually knew that [Joshua]
faced a substantial risk of serious harm’ and did not respond reasonably to that
risk.” See A.H., 891 F.3d at 726 (quoting Drake, 445 F.3d at 1042); cf. Luckert v.
Dodge County, 684 F.3d 808, 817 (8th Cir. 2012) (“In the jail suicide context,
qualified immunity is appropriate when a plaintiff ‘has failed to show ... that his
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jailers have acted in deliberate indifference to the risk of his suicide.’ ” (quoting
Rellergert, 924 F.2d at 796)).
“[W]here suicidal tendencies are discovered and preventive measures taken,
the question is only whether the measures taken were so inadequate as to be
deliberately indifferent to the risk.” A.H., 891 F.3d at 727 (quoting Rellergert, 924
F.2d at 796). The Court “must objectively ‘consider[ ] the measures taken in light
of the practical limitations on jailers to prevent inmate suicides.’ ” Luckert, 684
F.3d at 818 (alterations in original) (quoting Rellergert, 924 F.2d at 796).
Deliberate indifference is a rigorous standard, “akin to criminal recklessness,
something more than mere negligence; a plaintiff must show that a prison official
actually knew that the inmate faced a substantial risk of serious harm and did not
respond reasonably to that risk.” A.H., 891 F.3d at 726. It requires “a showing that
the official was subjectively aware of the risk.” Perry v. Adams, 993 F.3d 584, 587
(8th Cir. 2021), citing, Farmer v. Brennan, 511 U.S. 825, 829 (1994).
When the claim is that “jailers fail[ed] to discover the decedent's suicidal
tendencies,” as in this case, the issue is whether a defendant “possess[ed] the
level of knowledge that would alert him to a strong likelihood that [the
decedent] would attempt suicide.” Bell v. Stigers, 937 F.2d 1340, 1343-44
(8th Cir. 1991) (cleaned up), overruled on other grounds by Farmer, 511
U.S. at 829, 114 S.Ct. 1970. A showing of negligence is insufficient. See
Lambert v. City of Dumas, 187 F.3d 931, 937 (8th Cir. 1999). “[A]n
official's failure to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.” Farmer, 511 U.S. at 838, 114
S.Ct. 1970.
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Leftwich Trustee of Statutory Class of Next of Kin to Leftwich v. Cnty. of Dakota, 9
F.4th 966, 972–73 (8th Cir. 2021).
The evidence in the record establishes that Defendants did not merely
ignore the notification by Francisco’s cellmate that he “was suicidal.” They
proceeded to inquire from Francisco to ascertain whether the cellmate’s claim was
not merely an attempt to have Francisco removed from the cell. Francisco was
questioned by Defendants, and it appeared to them that he was not at that time
contemplating suicide. The cell was searched, and the video of the search was
reviewed by not only Defendant Rhodes, but another facility employee to make
sure nothing was missed. None of the defendants actually knew
No reasonable jury could find that Defendants knew or must have known
that there was a substantial risk. Each Defendant took steps they believed were
proper to ascertain whether a risk existed. There is absolutely no evidence that any
defendant was aware of Francisco’s intent to commit suicide and thereafter
deliberately did nothing to prevent it. Indeed, the medical staff ascertained
Francisco should not be placed on a suicide watch. “Prison officials lacking
medical expertise are entitled to rely on the opinions of medical staff regarding
inmate diagnosis. . .” Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011).
Conclusion
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Based on the foregoing analysis, Defendants are entitled to qualified
immunity on the claims against them, and therefore, summary judgment is proper.
Accordingly,
IT IS HEREBY ORDERED that Defendants Rhodes, England, Griffin, and
Scallion’s Motion for Summary Judgment [Doc. No. 98], is Granted.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 27th day of December, 2022.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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