Hill v. Does 1-15 et al
Filing
95
Opinion and Order - The Court DENIES Defendant's Motion for Summary Judgment (ECF 63 ). Signed on 9/24/2021 by Judge Michael H. Simon. (mja) (Main Document 95 replaced on 9/24/2021) (cw).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROSA HILL, Personal Representative of the
ESTATE OF ZACHARY HILL,
Case No. 3:17-cv-250-SI
OPINION AND ORDER
Plaintiff,
v.
DR. PETER LE, DR. NEAL SOLOMON,
DR. JOHN JACKSON, MR. ERIC DYER,
DR. ANDREW GRASLEY, JOHN AND
JANE DOES 1-5, THE UNITED STATES
OF AMERICA,
Defendants.
Michelle R. Burrows, MICHELLE R. BURROWS PC, 1333 NE Orenco Station Parkway # 525,
Hillsboro, OR 97124; Hala Gores, HALA J. GORES PC, 1332 SW Custer Drive, Portland,
OR 97219. Of Attorneys for Plaintiff.
Scott Erik Asphaug, Acting United States Attorney, and Kevin Danielson, Assistant United
States Attorney, U.S. DEPARTMENT OF JUSTICE, 1000 SW Third Avenue, Suite 600, Portland,
OR 97204. Of Attorneys for Defendant United States.
Michael H. Simon, District Judge.
Plaintiff’s First Amended Complaint asserts three claims—two allege violations of the
Eighth Amendment by the individual defendants and one alleges wrongful death under Oregon
state law against the United States (United States or Defendant). Previously, Plaintiff moved to
PAGE 1 – OPINION AND ORDER
dismiss voluntarily all claims against the individual defendants, which the Court granted. This
leaves only Plaintiff’s wrongful death claim against the United States. The United States moves
for summary judgment, arguing that although it has waived its sovereign immunity under the
Federal Tort Claims Act (FTCA), that waiver is subject to certain exceptions. The United States
asserts that the “discretionary function” exception applies to Plaintiff’s wrongful death claim,
and thus the Court does not have subject matter jurisdiction over that claim. Plaintiff responds
that because Plaintiff’s allegations rise to the level of an Eighth Amendment violation, the
discretionary function exception does not apply. The United States also argues, in the alternative,
that there is no material issue in dispute that the United States committed negligence as alleged
by Plaintiff because it was not reasonably foreseeable that Plaintiff’s Decedent could have been
harmed by the conduct of the United States. For the reasons stated below, the Court denies
Defendant’s motion.
STANDARDS
A party is entitled to summary judgment 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). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
PAGE 2 – OPINION AND ORDER
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
The Court takes judicial notice of the docket in two criminal cases involving Plaintiff’s
Decedent, Mr. Zachary Hill: (1) Mr. Hill’s original arrest for bank robbery, Case No. 3:1-cr-495SI-1; and (2) Mr. Hill’s indictment in 2014 for assaulting a federal officer, Case No. 3:14-cr-410SI.1 Regarding the bank robbery charge, the Court issued an arrest warrant for Mr. Hill in
December 2001. United States v. Hill, Case No. 3:1-cr-495-SI, ECF 2, 4. On November 18,
2002, U.S. District Judge Ancer L. Haggerty found Mr. Hill “not guilty of the bank robbery as
charged in the indictment by reason of insanity” and committed Mr. Hill to custody for
treatment. Id., ECF 27. Mr. Hill spent most of the rest of his life in custody in federal medical
facilities, including the U.S. Medical Center for Federal Prisoners in Springfield, Missouri
(Springfield). Springfield is a “locked down” federal medical facility.
On July 17, 2007, on the recommendation of the warden at Springfield, Judge Haggerty
conditionally released Mr. Hill, imposing a lifetime period of supervision. In 2007 and 2008,
Mr. Hill repeatedly violated the terms of his conditional release, was detained pending a
revocation hearing, and then was released with more conditions. On July 14, 2008, this cycle
ended when Judge Haggerty again committed Plaintiff to the custody of the Bureau of Prisons
(BOP). Id., ECF 66, 67.
On September 5, 2013, Judge Haggerty again conditionally released Plaintiff. Id.,
ECF 69. In January 2014, Mr. Hill was detained for violating the terms of his conditional release.
Citations to the Court’s electronic filing record in this case are referenced as “ECF”
without a preceding case number, and citations to the Court’s electronic filing record in Mr.
Hill’s criminal cases are referenced first by case number (or id.) and then by ECF number.
1
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Id., ECF 75. In February 2014, Judge Haggerty found that Mr. Hill violated some terms of his
conditional release and added conditions but did not revoke his release. Id., ECF 78, 79. On
May 14 and July 31, 2014, the Court issued additional arrest warrants for Mr. Hill for violating
the terms of his conditional release. Id. ECF 82, 91.
On August 26, 2014, Mr. Hill again violated the terms of his conditional release. Id.,
ECF 98, 99. His probation officer obtained oral permission from a U.S. District Judge to have
Mr. Hill arrested for violating the terms of his conditional release. Id. When the U.S. Marshals
arrived, Mr. Hill was uncooperative, assaulted a U.S. Deputy Marshal, and had to be tased to be
arrested. Id. The undersigned district judge issued an arrest warrant for Mr. Hill based on his new
violation of his conditional release. Id., ECF 100. Mr. Hill was placed back in BOP’s custody.
On February 9, 2015, Mr. Hill admitted to violating the terms of his conditional release. Id., ECF
125. The undersigned judge set a revocation hearing for May 18, 2015. Id.
Based on Mr. Hill’s conduct on August 26th, the government indicted Mr. Hill for
assaulting a federal officer. United States v. Hill, Case No. 3:14-cr-410-SI, ECF 1. The
government filed that indictment on October 7, 2014. Id. Mr. Hill entered a plea of guilty on
February 9, 2015 (the same day he admitted to violating the terms of his release). Id., ECF 28,
29. The undersigned judge set Mr. Hill’s sentencing for May 18, 2015, the same day set for the
disposition of Mr. Hill’s revocation.
Mr. Hill’s repeated supervised release violations over the years included: failing to
complete residential drug and alcohol treatment; abusing alcohol; failing to take required
urinalysis tests; failing to participate in a resident re-entry program; leaving treatment facilities
and home confinement without permission; failing to report; and failing to attend mental health
treatment. His violations in August 2014—which led to his arrest during which he assaulted the
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federal officer and Mr. Hill’s confinement through the date of his death—were failing to report,
failing to comply with the requirements relating to his mental health treatment, failing to take a
required urinalysis test, using alcohol, and improperly using prescription medication. The
probation officer also noted reports of Mr. Hill’s engaging in self-harm and potentially posing a
danger to others.
Mr. Hill’s original confinement in 2002 was at a BOP medical facility in Rochester, New
York. He was transferred to Springfield in 2004 because of his “significant aggressive behavior”
and “assaultiveness.” ECF 78-9 at 6-7. He stayed in Springfield until his conditional release
in 2007. When he was returned to custody by Judge Haggerty in 2008, BOP placed Mr. Hill at
the Rochester facility, until he again was transferred to Springfield in 2009 after assaulting
another person. Id. at 7. Throughout his stay in BOP custody, Mr. Hill assaulted inmates and
staff, engaged in self harm, including serious suicide attempts, and abused prescription
medication. In June 2011, the doctors at Springfield placed Mr. Hill on involuntary psychotropic
medication. Id. at 8. In Mr. Hill’s May 16, 2012 Risk Assessment Review Report, the Risk
Assessment Panel stated that “Mr. Hill’s history of violence is most disconcerting” and that
“[t]ypically when he has been assaultive while here at Springfield there has been no clear
provocation[.]” Id. at 9.
The evaluators also commented on Mr. Hill’s improved control of his aggression after
being involuntarily placed on medication but noted that he “continued, however, to engage in a
number of other maladaptive behaviors which reflect severe and persisting borderline and antisocial personality traits; self-mutilation by cutting; misuse of medication; lying; and refusing to
submit to a random drug test.” Id. The panel recited that as of the review, Mr. Hill had received
at least 44 disciplinary violations while in custody. Id. at 5-6 (noting Mr. Hill had received 32
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violations as of his 2009 review and listing 12 later violations). The panel concluded that
Mr. Hill suffers from “serious chronic mental illness, previously complicated by illicit drug
abuse and poor treatment compliance.” Id. at 11. The panel, however, was “impressed” by
Mr. Hill’s improvement with involuntary medication. Id.
After this risk assessment report had been completed, Mr. Hill was disciplined at least
twice for “snorting” (crushing and inhaling) prescription medications, once in July 2012 and
again in April 2013. ECF 78-6 at 13. In Mr. Hill’s May 8, 2013 Risk Assessment Review Report,
the Risk Assessment Panel noted Mr. Hill’s improved control of his assaultive behavior with
involuntary medication. Id. The panel again emphasized that Mr. Hill “continued, however, to
engage in a number of other maladaptive behaviors which reflect his severe personality disorder
and proclivity for drug abuse: i.e. misuse of medication; lying; insolence; and phone abuse.” Id.
The report described Mr. Hill’s “history of prescription drug diversion and abuse (i.e. diverting
Artane and Wellbutrin, for purposes of crushing and as snorting as inhalant).” Id. at 10; see also
id. at 13, 15 (discussing Mr. Hill’s abuse of prescription medication by “snorting” it). Because of
his improvement after involuntarily taking medication, however, the panel recommended
Mr. Hill’s conditional release. Id. at 16.
When Mr. Hill was yet again returned to federal custody a year later after assaulting the
federal officer,2 Mr. Hill was housed by BOP at the Federal Correctional Institution, Sheridan
(Sheridan), instead of at a medical facility like before. At Sheridan, Mr. Hill was housed in the
jail unit, for pretrial detainees. This is a general population unit.
2
In that intervening year he had repeatedly been detained in jail for violating the terms of
his conditional release until his violation hearing could be held but had not been returned to a
federal facility.
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BOP previously had classified Mr. Hill as a Care Level 4 (Care4-MH: Inpatient
Psychiatric Care) patient because of his mental health issues, which is the highest category of
care. His classification had not been changed after he returned to custody in 2014. Care Level 4
patients require “acute care in a psychiatric hospital and cannot function in general population.”
ECF 78-22 at 9. Care Level 3 (Care3-MH: Enhanced Outpatient Mental Health Care or
Residential Mental Health Care) patients require enhanced outpatient care such as weekly mental
health interventions, or residential mental health care. Id. at 8-9. Care Level 2 (Care2-MH:
Routine Outpatient Mental Health Care or Crisis-Oriented Mental Health Care) patients, on the
other hand, require routine outpatient mental health care on an ongoing basis or brief, crisisoriented mental health care such as suicide watch. Id. at 8. The BOP’s Undetermined Death
Review3 on Mr. Hill noted that he should have been reclassified as Care Level 3 upon his
conditional release from Springfield. ECF 78-2 at 7. Mr. Hill, however, remained classified at
Care Level 4 until his death. He was not housed in an inpatient (Care Level 4) or residential
(Care Level 3) facility. Nor did he receive the enhanced outpatient psychiatric services required
for a Care Level 3 patient. Indeed, some of his evaluations did not even recommend routine
ongoing care at the Care Level 2 level.
BOP placed Mr. Hill at Sheridan on or about October 24, 2014. See, e.g., ECF 65-1 at 6.
His first psychiatric visit for which the Court has records was on November 5, 2014. Mr. Hill
was referred to psychology services by a corrections officer for invading the personal space of a
nurse. ECF 78-14. He was seen by Dr. Peter Le, who did not recommend any follow up. Mr. Hill
was next seen on November 10, 2014, after requesting placement in the Special Housing Unit
3
The BOP had the Undetermined Death Review completed by Dr. Robert Nagle,
National Suicide Prevention Coordinator, Central Office, and Gerald Del Re, Correctional
Services Specialist, Western Regional Office.
PAGE 7 – OPINION AND ORDER
(SHU) and reporting that he had been “jumped” by Native Americans. ECF 78-15. Dr. Le again
saw Mr. Hill, this time noting some of Mr. Hill’s psychological history and that he was a Care
Level 4 patient. Dr. Le concluded: “No follow-up is necessary other than routine SHU Review
protocol.” Id.
The relevant housing policy in effect at the time of Mr. Hill’s incarceration in 2014
and 2015 stated the following as a reason for placement in the SHU:
(c) Removal from general population. Your presence in the general
population poses a threat to life, property, self, staff, other inmates,
the public, or to the security or orderly running of the institution
and:
(1) Investigation. You are under investigation or awaiting a
hearing for possibly violating a Bureau regulation or
criminal law;
(2) Transfer. You are pending transfer to another institution
or location;
(3) Protection cases. You requested, or staff determined
you need, administrative detention status for your own
protection[.]
ECF 91-2 at 3-4 (Policy 5270.10, effective August 1, 2011).
For two weeks beginning November 10, 2014, Mr. Hill was housed in the SHU. Mr. Hill
had requested protective custody and “checked” himself in, reporting that he felt threatened.
ECF 78-2 at 5. In the BOP’s Undetermined Death Review, the agency noted that “unfortunately”
a threat assessment was not done then and so it is unclear whether Mr. Hill’s fears “were
legitimate or he experienced an increase in paranoia.” Id.
Two weeks after Mr. Hill “checked” himself into the SHU, on November 25, 2014,
Dr. Alexander Horwitz performed a psychiatric assessment of Mr. Hill. ECF 78-28. Dr. Horwitz
described Mr. Hill’s self-reports of not having any symptoms, not having self-injurious thoughts,
not having thoughts of harming others, and not feeling suicidal. Id. at 1. Dr. Horwitz appeared to
PAGE 8 – OPINION AND ORDER
accept those self-reports, despite listing that Mr. Hill was a Care Level 4 patient and had a
history of hospitalization while in custody and a history of self-injurious behavior. Id. at 2.
It also does not appear that Dr. Horwitz considered Mr. Hill’s recent reports of threats or
possible increase in paranoia that led to his housing in the SHU. Dr. Horwitz noted Mr. Hill for a
follow up examination in three months, on February 25, 2015. Id. at 3. On November 26, 2014,
Mr. Hill’s mother called and requested an update on his mental health after Mr. Hill sent her a
letter. ECF 78-16. Dr. Le advised her that Mr. Hill had been in the clinic the day before. Dr. Le
did not mention that Mr. Hill was being transferred that day because of upcoming court
proceedings. Id.
Mr. Hill was screened at Sheridan’s psychology services when he returned to Sheridan on
January 15, 2015. ECF 78-18. The intake screener found Mr. Hill stable and appropriate for
general population, with no follow-up necessary. Id. Mr. Hill was next seen on January 23, 2015
and January 29, 2015, for routine visits based on his Care Level status. ECF 78-19 and 78-20. In
nearly identical reports, BOP’s psychology services clinical department accepted his self-report
that he was “doing fine” and did not recommend any follow up other than routine monitoring. Id.
Mr. Hill was again transferred for court hearings on February 5, 2015. When he returned,
after his February 2015 plea agreement, Mr. Hill was given a general medical and psychological
screening. Dr. Peter Le performed the psychological screening on February 19, 2015. ECF 66-1
at 7. Dr. Le recited Mr. Hill’s previous two suicide attempts but noted that Mr. Hill “denied any
current suicidal ideation and agreed to contact staff if he becomes suicidal.” Id. Dr. Le found
Mr. Hill’s mental status to be “within normal limits and absent of any gross psychopathology”
and concluded that Mr. Hill “was deemed appropriate for placement in general population.” Id.
Despite Mr. Hill’s “discharge diagnoses” in September 2013 of “schizoaffective disorder, bipolar
PAGE 9 – OPINION AND ORDER
type, and personality disorder NOS with antisocial and borderline traits,” Dr. Le believed that
“[n]o follow-up is necessary at this time.” Id. It is unclear whether Dr. Le considered Mr. Hill’s
many violations of the terms of his release, including those violations relating to mental health
treatment and drug and alcohol abuse and particularly the violations that occurred in
August 2014. It is also unclear whether Dr. Le considered: (1) Mr. Hill’s many disciplinary
violations during his custody in BOP, including for medication misuse; (2) Mr. Hill’s history of
medication noncompliance; or (3) that Mr. Hill required involuntary medication protocol.
BOP also had available for review in considering housing placement forms completed
during Mr. Hill’s transports to and from Multnomah County Jail and other facilities for court
hearings. For example, Mr. Hill’s U.S. Marshals Form 129 dated February 17, 2015 states that
Mr. Hill is “psychotic/delusional/assaultive,” has “mental probs/schizophrenia/paranoia,” is
“violent” and “assaultive towards other inmates” and should be left in restraints. ECF 78-34
at 17. Mr. Hill’s U.S. Department of Justice Medical Summary of Federal Prisoner in Transit
Form dated January 15, 2015 states that he has a “history of suicide attempt,” “polysubstance
abuse,” “high risk medication use,” “schizophrenia,” “psychosis,” and “depression.” ECF 78-31
at 1.
After his evaluation on February 19, 2015, Mr. Hill was placed in general population
with a cellmate, Rodney Tate, who had a “self-carry” prescription for 100mg of Zoloft
(sertraline). Zoloft is a prescription medication, but not a “scheduled” drug by the Drug
Enforcement Agency. At about 1:55 a.m. on February 27, 2015, Mr. Tate woke to find Mr. Hill
nonresponsive and signaled an alarm. BOP staff at Sheridan unsuccessfully tried to revive
Mr. Hill, first with a defibrillator that was missing its pads, then with a working defibrillator,
then with CPR. See ECF 78-2 at 7. After an ambulance crew arrived, they also could not revive
PAGE 10 – OPINION AND ORDER
Mr. Hill. He was pronounced dead at 2:45 a.m. An autopsy “ruled the manner of death as
undetermined and cause of death as sertraline overdose.” Id. at 1; see also ECF 78-3 at 1. Mr.
Hill’s Death Certificate lists his immediate cause of death as a sertraline (Zoloft) overdose and
his “other significant condition contributing to death” as atherosclerotic heart disease. ECF 65-1
at 1.
Mr. Tate reported to the Federal Bureau of Investigation that on February 26, 2015, he
was issued four bottles of Zoloft and when his bottles were returned to him after Mr. Hill’s
death, one of the bottles was empty. ECF 78-23 at 4. A photograph of the cell taken shortly after
the incident shows four prescription bottles out in the open where Mr. Tate was storing his
prescriptions. ECF 78-23 at 8. The BOP, however, explains that the empty pill bottle was from
January 2015 and not February 2015. The date on the empty pill bottle supports this contention.
ECF 78-23 at 15. The BOP concluded that “[t]his may mean that inmate Tate was misusing his
medications.” ECF 78-5 at 7. In other words, Mr. Tate may have been hoarding medication. It
appears that Mr. Hill ingested some of Mr. Tate’s Zoloft and overdosed, although the
investigation as to the source of the Zoloft taken by Mr. Hill was inconclusive.
Mr. Hill had a blood level sertraline concentration of 6300 ng/mL. See ECF 78-4 at 5. In
post-mortem examinations of 75 patients, blood level concentrations greater than 1500 ng/mL
were found to be contributory to death. Id. On March 3, 2015, the United States moved to
dismiss the indictment in both criminal cases because of Mr. Hill’s death. The Court granted the
motions.
DISCUSSION
Defendant argues that Plaintiff’s claim is barred by the discretionary function exception
to the FTCA. Plaintiff responds that the discretionary function exception does not apply because
Plaintiff has shown an issue of fact about whether the government’s conduct violated the Eighth
PAGE 11 – OPINION AND ORDER
Amendment of the United States Constitution, thus placing the alleged conduct outside the
discretionary conduct exception. The parties also disagree on what standard of review applies to
the Court’s analysis of whether Plaintiff has sufficiently raised a constitutional claim to take
Plaintiff’s state law wrongful death claim outside the discretionary function exception—the
standard that applies to a pretrial detainee or the standard that applies to a convicted prisoner.
The Court first addresses this threshold issue. Finally, Defendant also argues, in the alternative,
that even if the Court does not apply the discretionary function exception, Plaintiff fails to raise
an issue of fact about whether Defendant’s conduct was negligent.
A. Standard of Review (Pretrial Detainees versus Convicted Prisoners)
Plaintiff argues that the standard of review for the Court in considering whether
Defendant violated Mr. Hill’s constitutional rights is the “purely objective” standard applied to
claims under the Fourteenth Amendment, Castro v. Los Angeles Cnty., 833 F.3d 1060, 1069 (9th
Cir. 2016), rather than the “object and subjective” standard applied to Eighth Amendment
claims. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). In Plaintiff’s response to
Defendant’s motion for summary judgment, Plaintiff asserts that Mr. Hill was a pretrial detainee
at the time of his death. Plaintiff cites the indictment of Mr. Hill charging him with assaulting a
federal officer. Plaintiff argues that at the time of Mr. Hill’s death, he was “awaiting adjudication
on charges he violated his release and assaulted a federal officer.”4 Defendant responds that
Mr. Hill had been in custody since 2002 and that he was in “holdover” status at the time of his
death, which Defendant asserts is not a pretrial detainee status.
4
There appears to be a scrivener’s error in Plaintiff’s brief. Plaintiff cites Exhibit 9,
which is a Risk Assessment Review Report on Mr. Hill. The indictment on the charge of
assaulting a police officer, Case No. 3:14-cr-410-SI, is Exhibit 10.
PAGE 12 – OPINION AND ORDER
As described in the Background section above, at the time of his death, Mr. Hill had
pleaded guilty but had not yet been sentenced. The question about the proper standard of review,
therefore, is whether his guilty plea changed his status from that of a pretrial detainee to that of a
convicted prisoner, which would warrant application of the standard of review for Eighth
Amendment prisoner claims.
Many district courts in the Ninth Circuit have answered the question of whether a guilty
plea changes the status of a pretrial detainee in the affirmative. See, e.g., Fitzpatrick v. Las Vegas
Metro. Police Dep’t, 2020 WL 560582, at *11 (D. Nev. Feb. 3, 2020) (“Because Bowling
pleaded guilty, he was no longer a pretrial detainee, and it is the Eighth Amendment that supplies
the standard for the constitutional claims here.”); Hodges v. Corizon Health, Inc., 2019
WL 7476444, at *15 n.19 (D. Or. Sept. 10, 2019), report and recommendation adopted, 2020
WL 42791 (D. Or. Jan. 2, 2020), aff’d, 837 F. App’x 466 (9th Cir. 2020) (“The Fourteenth
Amendment applies to pretrial detainees while the Eighth Amendment applies to individuals in
custody after a conviction. Hodges was a pretrial detainee until July 16, 2013, when he entered a
guilty plea.” (citation omitted)); Padgett v. Arpaio, 2009 WL 3049579, at *3 (D. Ariz. Sept. 22,
2009) (“Defendant asserts that prior to the date of the incident at issue, Plaintiff had entered a
guilty plea and was therefore a convicted inmate, not a pretrial detainee. Plaintiff offers no
evidence to suggest that he was not a convicted inmate on the date in question. Accordingly,
Plaintiff’s allegations are properly considered under the Eighth Amendment excessive force
standard.” (citation omitted)); In re Application of Hughes, 2002 WL 31430321, at *1 (N.D. Cal.
Oct. 25, 2002) (“When the petition was filed, he apparently was an arrestee or pretrial detainee,
but on September 30, 2002, he entered a guilty plea. . . . [H]e is no longer a pretrial detainee and
PAGE 13 – OPINION AND ORDER
now is a convict.” (citations omitted)). The Court agrees with the conclusions reached in these
cases.
The U.S. Supreme Court, in the context of considering class certification of pretrial
detainees under the “capable of repetition yet evading review” exception to mootness, explained:
Pretrial detention is by nature temporary, and it is most unlikely
that any given individual could have his constitutional claim
decided on appeal before he is either released or convicted. . . . The
length of pretrial custody cannot be ascertained at the outset, and it
may be ended at any time by release on recognizance, dismissal of
the charges, or a guilty plea, as well as by acquittal or conviction
after trial. It is by no means certain that any given individual,
named as plaintiff, would be in pretrial custody long enough for a
district judge to certify the class.
Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). The U.S. Supreme Court has also explained
that “a plea of guilty is more than an admission of conduct; it is a conviction.” Boykin v.
Alabama, 395 U.S. 238, 242 (1969). A guilty plea changes the status of a criminal defendant to a
convict and can “end[]” pretrial detainee status, as noted by the Supreme Court in Gerstein.5
Thus, the Court agrees with the many other courts in this circuit that upon a guilty plea, even
before sentencing, the applicable standard of review is the Eighth Amendment standard
applicable to convicted prisoners, not the Fourteenth Amendment standard applicable to pretrial
detainees.
5
The Court also observes, as a matter of judicial notice, that when the undersigned
accepted Mr. Hill’s guilty plea on February 9, 2015, the undersigned stated, as a matter of the
undersigned’s routine practice in a plea colloquy, “[t]he plea is therefore accepted, and the
defendant is now adjudged guilty of that offense.” See Federal Judicial Center, Benchbook for
U.S. District Court Judges § 2.01 (6th ed. 2013); see also United States v. Hill, Case No. 3:14-cr410-SI, ECF 28.
PAGE 14 – OPINION AND ORDER
B. FTCA Discretionary Function Exception
1. Whether the Exception Applies in Eighth Amendment Cases
The FTCA provides a limited waiver of the federal government’s sovereign immunity
from damages liability for torts committed by federal employees acting within the scope of their
employment. See 28 U.S.C. §§ 1346(b), 2674. The FTCA expressly retains immunity from some
tort liability through a number of statutory exceptions. Id. § 2680. If one of those exceptions
applies, a court lacks subject-matter jurisdiction to hear a claim. See Simmons v. Himmelreich,
578 U.S. 1162, 136 S.Ct. 1843, 1847 (2016) (“[D]istrict courts do not have jurisdiction over
claims that fall into one of the 13 categories of ‘Exceptions’ . . . .”).
The discretionary function exception provides that the FTCA’s waiver of sovereign
immunity does not apply to “[a]ny claim . . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or
an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C.
§2680(a). “The purpose of the exception is to prevent judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and political policy through the medium
of an action in tort.” United States v. Gaubert, 499 U.S. 315, 323 (1991) (simplified).
Plaintiff argues that Defendant was negligent in placing Mr. Hill in Sheridan instead of a
medical facility, assessing Mr. Hill upon his arrival at Sheridan, evaluating his psychological
condition and significant psychological history, determining appropriate housing at Sheridan,
and placing him in a cell with someone who had “self-carry medication,” namely, Zoloft.
Mr. Hill overdosed on Zoloft, which was the primary cause of his death. Plaintiff also argues that
Defendant failed to follow BOP policies to adequately consider Mr. Hill’s psychological
condition upon his arrival and properly house him.
PAGE 15 – OPINION AND ORDER
Plaintiff details Mr. Hill’s long and disturbing history within the BOP and related
institutions. Plaintiff describes Mr. Hill’s unstable mental health, including that he was found not
guilty by reason of insanity and then committed by a federal judge as dangerous to the
community, and that he was not provided with much psychiatric care at Sheridan. Plaintiff also
emphasizes the fact that the defibrillator nearest to Mr. Hill’s cell was nonfunctioning and unable
to be used to revive Mr. Hill. That said, Plaintiff acknowledges that courts have concluded that
housing decisions in prisons are discretionary decisions for purposes of the discretionary
function exception. Plaintiff argues, however, that the negligent conduct described by Plaintiff
rises to the level of a constitutional violation, thereby taking the conduct outside the
discretionary function exception.
When a plaintiff asserts a claim against the United States under the FTCA, the claim
necessarily is not a constitutional tort because constitutional torts are not cognizable under the
FTCA. See F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994). Nevertheless, as explained by the
D.C. Circuit, that does not preclude a plaintiff from arguing that the United States may not assert
the FTCA’s discretionary function exception to jurisdiction over the state tort when the plaintiff
argues that the conduct giving rise to the tort was egregious enough to be to a constitutional
violation.
The discretionary-function exception likewise does not shield
decisions that exceed constitutional bounds, even if such decisions
are imbued with policy considerations. See Medina, 259 F.3d
at 225 (acknowledging, in reliance on Berkovitz, 486 U.S. at 536,
108 S. Ct. 1954, and Red Lake, 800 F.2d at 1196, that federal
officials lack discretion to violate constitutional rights). A
constitutional limit on governmental power, no less than a federal
statutory or regulatory one like the FBI policy in Red Lake,
circumscribes the government’s authority even on decisions that
otherwise would fall within its lawful discretion. The government
“has no ‘discretion’ to violate the Federal Constitution; its dictates
are absolute and imperative.” Owen v. City of Independence,
PAGE 16 – OPINION AND ORDER
Mo., 445 U.S. 622, 649, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980).
Indeed, the absence of a limitation on the discretionary-function
exception for constitutionally ultra vires conduct would yield an
illogical result: the FTCA would authorize tort claims against the
government for conduct that violates the mandates of a statute,
rule, or policy, while insulating the government from claims
alleging on-duty conduct so egregious that it violates the more
fundamental requirements of the Constitution.
Loumiet v. United States, 828 F.3d 935, 944-45 (D.C. Cir. 2016).
The D.C. Circuit described its holding and those of other circuits, including the Ninth
Circuit:
We hold that the FTCA’s discretionary-function exception does
not provide a blanket immunity against tortious conduct that a
plaintiff plausibly alleges also flouts a constitutional prescription.
At least seven circuits, including the First, Second, Third, Fourth,
Fifth, Eighth, and Ninth, have either held or stated in dictum that
the discretionary-function exception does not shield government
officials from FTCA liability when they exceed the scope of their
constitutional authority. In Nurse v. United States, for example, the
Ninth Circuit held that “in general, governmental conduct cannot
be discretionary if it violates a legal mandate,” including a
constitutional mandate. 226 F.3d 996, 1002 (9th Cir. 2000). The
discretionary-function exception was inapplicable, that court
explained, because the plaintiff had alleged tort claims based on
“discriminatory, unconstitutional policies which the defendants
had no discretion to create.” Id. Likewise, the Eighth Circuit in Raz
v. United States held that the FBI’s “alleged surveillance activities
fell outside the FTCA’s discretionary-function exception” where
the plaintiff had “alleged they were conducted in violation of his
First and Fourth Amendment rights.” 343 F.3d 945, 948 (8th
Cir. 2003); see also, e.g., Limone v. United States, 579 F.3d 79,
102 (1st Cir. 2009) (holding that challenged “conduct was
unconstitutional and, therefore, not within the sweep of the
discretionary function exception”); Medina v. United States, 259
F.3d 220, 225 (4th Cir. 2001) (In “determining the bounds of the
discretionary function exception we begin with the principle that
federal officials do not possess discretion to violate constitutional
rights or federal statutes.”); U.S. Fid. & Guar. Co. v. United
States, 837 F.2d 116, 120 (3d Cir. 1988) (“Conduct cannot be
discretionary if it violates the Constitution, a statute, or an
applicable regulation. Federal officials do not possess discretion to
violate constitutional rights or federal statutes.”); Sutton v. United
States, 819 F.2d 1289, 1293 (5th Cir. 1987) (“Action does not fall
PAGE 17 – OPINION AND ORDER
within the discretionary function exception of § 2680(a) when
governmental agents exceed the scope of their authority as
designated by statute or the Constitution.”); Myers & Myers Inc. v.
USPS, 527 F.2d 1252, 1261 (2d Cir. 1975) (“It is, of course, a
tautology that a federal official cannot have discretion to behave
unconstitutionally or outside the scope of his delegated
authority.”).
Id. at 943 (simplified).
The issue, therefore, with respect to Defendant’s assertion of the FTCA discretionary
function exception, is whether there is an issue of fact that Defendant’s conduct violated the
Eighth Amendment.6 If so, then the Court cannot apply the discretionary function exception, and
the Court may not grant summary judgment in favor of the United States. The Court next
discusses whether Plaintiff raises an issue of fact on Plaintiff’s Eighth Amendment contention.
2. Whether Plaintiff has Shown a Factual Dispute on Defendant’s Purported
Eighth Amendment Violation
To establish an Eighth Amendment violation under § 1983 a convicted prisoner must
satisfy “both the objective and subjective components of a two-part test.” Toguchi, 391 F.3d
at 1057 (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). First, the prisoner must
show that the prison official deprived him of the “minimal civilized measure of life’s
necessities.” Id. (quotation marks and citation omitted). Second, the plaintiff must show that the
prison official “acted with deliberate indifference in doing so.” Id. (quotation marks and citation
omitted).
At oral argument, counsel for Defendant argued that Plaintiff’s challenge to
Defendant’s application of the discretionary function exception also fails because Plaintiff does
not sufficiently allege that the United States violated Mr. Hill’s constitutional rights in the
Amended Complaint. Plaintiff’s claim for wrongful death against the United States, however,
incorporates by reference all of the preceding allegations. Am. Compl. ¶ 49 (ECF 24). In the
preceding allegations, Plaintiff specifically alleges deliberate indifference by BOP personnel
resulting in a violation of the Eighth Amendment.
6
PAGE 18 – OPINION AND ORDER
Defendant argues that Plaintiff fails to show an issue of fact that any employee of the
BOP knew of and disregarded an excessive risk to Mr. Hill’s health. Thus, contends Defendant,
Plaintiff cannot show a constitutional violation and cannot defeat the discretionary exception to
the FTCA.
Plaintiff responds that the BOP acted with deliberate indifference in placing Mr. Hill at
Sheridan, and in placing him into the general population, particularly with a cellmate who had a
self-carry prescription. The BOP knew about Mr. Hill’s serious mental health issues and
problems with crushing and inhaling and otherwise abusing prescription medications.
To support summary judgment, Defendant mainly relies on the declaration of James K.
Pelton, the Western Regional Medical Director of the BOP, who provides both expert and
percipient witness testimony. ECF 66. Mr. Pelton contends that the staff at Sheridan did nothing
wrong in placing Mr. Hill in the general population. Mr. Pelton notes that pretrial detainees
typically are placed in a general population unit. Id. at 6. Referencing Plaintiff’s argument that
Mr. Hill should have been placed in the SHU, Mr. Pelton disagrees. He asserts that based on the
information in Mr. Hill’s record and SHU Policy 5270, nothing in Mr. Hill’s record shows that
he was an immediate or serious danger to himself, others, or the orderly administration of the
facility. Id. at 6-7. The specific housing policy relied on by Mr. Pelton requiring that Mr. Hill be
an immediate or serious danger, however, was not in effect at the relevant time. Thus,
Mr. Pelton’s testimony on this point is not relevant and does not help the Court.
Contrary to Mr. Pelton’s testimony, the SHU policy in effect at Mr. Hill’s death,
Policy 5270.10, was not so limiting in relation to housing persons with mental health challenges.
The policy specifically allowed BOP to house persons in the SHU who posed a threat to
themselves, staff, other inmates, or the orderly running of the institution and, among other things,
PAGE 19 – OPINION AND ORDER
who were awaiting a hearing for violating criminal law (Mr. Hill was awaiting his sentencing
hearing) or were “protection cases” that need SHU housing for their protection (such as from
conduct like compulsively crushing and inhaling medication or other potentially self-injurious
conduct).
Mr. Pelton also states that “[p]sychiatric medications are not self-carry by BOP inmates
unless they are known to be safe when taken in excessive amounts.” ECF 66 at 10. He explains
that Zoloft is not a “scheduled” medication by the Drug Enforcement Agency and that he is
unaware of any cases in which it has been alleged to have contributed to death, other than
Mr. Hill. Id. NMS Labs, which performed the toxicology analysis and prepared the report at the
direction of BOP after Mr. Hill’s death, described that sertraline (the main active ingredient in
Zoloft) was found to have contributed to death in at least 75 cases. See ECF 78-4 at 5. The
BOP’s Undetermined Death Review also states that “Mr. Hill ingested a lethal dose of sertraline
(more than four times what is considered contributory to death).” ECF 78-2 at 6 (emphasis
added). Thus, the BOP had knowledge that there is a level of sertraline that is considered
contributory to death. The Undetermined Death Review also emphasized the many “serious”
suicide attempts and abuse of prescription medication by Mr. Hill while in BOP custody,
including in 2011, 2012, and 2013. Id. at 4.
The Ninth Circuit has explained deliberate indifference in the context of inmate safety:
In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L.
Ed. 2d 811 (1994), the Supreme Court outlined the standard for
Eighth Amendment liability for acting with “deliberate
indifference” to inmate safety. At the outset, the Court rejected the
“invitation to adopt an objective test for deliberate indifference.”
Id. at 837, 114 S. Ct. 1970. To prove deliberate indifference,
subjective recklessness is required, that is, an official “cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
PAGE 20 – OPINION AND ORDER
must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. Constructive notice does not suffice to
prove the requisite knowledge, but “[w]hether a prison official had
the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence.” Id. at 841-42, 114 S. Ct. 1970.
Harrington v. Scribner, 785 F.3d 1299, 1303-04 (9th Cir. 2015).
Deliberate indifference may occur when the need for more or different action “is so
obvious, and the inadequacy [of the current procedure] so likely to result in the violation of
constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately
indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). A plaintiff must put
forth evidence that the defendant “disregarded a known or obvious consequence of [its] action”
Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Board of Comm’rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 410 (1997)).
The Ninth Circuit has emphasized “the significance of the obviousness of a risk in a
deliberate indifference calculus.” Harrington, 785 F.3d at 1304.
Our cases support the proposition that obviousness of a risk may
be used to prove subjective knowledge . . . . See Lemire v. Cal.
Dep’t of Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013)
(requiring a plaintiff to demonstrate “that the risk was obvious or
provide other circumstantial or direct evidence that the prison
officials were aware of the substantial risk” to defeat summary
judgment); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)
(noting that subjective awareness “may be satisfied if the inmate
shows that the risk posed by the deprivation is obvious”).
Id.
As discussed above, BOP had extensive records about Mr. Hill’s serious suicide attempts,
problems with medication abuse (including crushing and inhaling medication), serious mental
health problems, and that he was classified as a Care Level 4 inmate. As a Care Level 4 inmate,
he was supposed to be housed in an inpatient facility, not Sheridan and certainly not in a general
PAGE 21 – OPINION AND ORDER
population unit. Further, even if Mr. Hill had been classified as a Care Level 3 inmate, he was
supposed to be either housed in a residential treatment facility or given enhanced psychiatric
care, neither of which was provided.
Of particular concern is BOP’s well-documented awareness of Mr. Hill’s repeated
problems abusing prescription medication. See, e.g., ECF 78-2 at 6 (“Mr. Hill had a lengthy
history of illicit and prescription substance abuse. On multiple occasions he was known to crush
and inhale prescribed medications.”); 78-6 at 20 (“Though Mr. Hill had hitherto consistently
denied diverting and abusing medication at the time of the incident, he did acknowledge to the
Risk Assessment Panel that he had in fact diverted his medication the day prior to the incident,
subsequently cut it up into a powder, and then ‘snorted’ it up his nose. . . . Mr. Hill has a long,
well-established history of drug abuse, both in the community, and in custody.”). BOP records
specifically describe that Mr. Hill “snorted” most of his various prescription medications,
including Artane, Wellbutrin, and Depakote. See, e.g., 78-6 at 10-11.
BOP also knew that prisoners had no way to lock up or secure their own self-carry
medication, which would provide Mr. Hill with access to any cellmate’s prescription medication,
or potentially other inmate’s medication. See, e.g., ECF 78-2 at 6 (“At the FDC, inmates do not
have the ability to purchase locks through commissary. . . . Given the increasing prevalence of
inmates with self-carry medications each inmate needs an area in their cell in which to secure
medications. New lockers or bins with a lid and hole to attach a lock are recommended.”);
ECF 78-23 at 4 (“Case Manager Mark Evans was interviewed and stated inmates housed at the
Federal Detention Center are not allowed to have combination padlocks, so they do not have any
way to secure their self-carry medication. So it would be possible for a cellmate, or any other
inmate for that matter, to obtain another inmate[’]s prescribed self-carry medications.”). Despite
PAGE 22 – OPINION AND ORDER
all this specific knowledge, Sheridan officials did not take any precaution to house Mr. Hill away
from self-carry medications or in the SHU.
The Supreme Court has explained that evidence that prison officials “expressly noted”
the risk “in the past” and “the circumstances suggest that the defendant-official being sued had
been exposed to information concerning the risk and thus ‘must have known’ about it” can
“permit a trier of fact to find that the defendant-official had actual knowledge of the risk.”
Farmer v. Brennan, 511 U.S. 825, 842-43 (1994). BOP personnel repeatedly described the risk
that Mr. Hill would crush and inhale most any prescription medication. Sheridan personnel had
access to all of Mr. Hill’s BOP records. Viewing the facts in the light most favorable to Plaintiff,
a reasonable factfinder could conclude that the circumstances support that the relevant Sheridan
personnel were exposed to this information and thus had actual knowledge of the risk, but
disregarded that risk in housing Mr. Hill. See id. This is enough to defeat summary judgment on
Plaintiff’s argument that the evidence created a triable issue of an Eighth Amendment violation,
sufficient to preclude the discretionary function exception at this stage.
Alternatively, viewing the facts in the light most favorable to Plaintiff, a reasonable
factfinder could also find that the risk of an inmate with Mr. Hill’s specific background being
seriously harmed or killed from being placed in general population without sufficient psychiatric
support, including from crushing and inhaling prescription medication, is so obvious that the
Sheridan officials had the requisite subjective knowledge. Harrington, 785 F.3d at 1304. This
also raises an issue of fact precluding summary judgment on whether Defendant acted with
deliberate indifference.
BOP argues that denying summary judgment here would require a complete change in
prison housing policy to house potentially vulnerable inmates away from inmates with self-carry
PAGE 23 – OPINION AND ORDER
medications. Few inmates, however, are likely have the unique history of Mr. Hill—someone
who has been in BOP psychiatric care for decades and for whom BOP has extensive records on
serious psychiatric conditions as well as being known to crush and inhale various prescription
medications.
C. Reasonable Foreseeability
Defendant argues that even if there is an issue of material fact about whether FTCA
discretionary function applies, the Court should still grant summary judgment against Plaintiff’s
wrongful death claim. Defendant asserts that it was not reasonably foreseeable that placing
Mr. Hill in a cell with an inmate who had a self-carry prescription for Zoloft would lead to
Mr. Hill’s death. Defendant asserts that because Dr. Pelton was unaware of any inmate who died
from a Zoloft overdose, then it was not reasonably foreseeable that Defendant’s conduct would
lead to Mr. Hill’s death.
Under the unique facts of this case, the Court finds that a reasonable factfinder could
conclude that it was reasonably foreseeable that Defendant’s housing decisions relating to
Mr. Hill could lead to his death. As discussed above, Defendant knew about Mr. Hill’s:
(1) serious mental health problems; (2) multiple serious suicide attempts; (3) need for placement
on involuntary medication; and (4) drug abuse, particularly misuse of prescription medication.
Defendant also knew that Mr. Hill (1) could not be around self-carry medications, (2) had on
“multiple occasions” crushed and inhaled prescription medications, and (3) that self-carry
medications of cellmates were not locked or otherwise safely stored. Additionally, Defendant
knew that Mr. Hill was a Care Level 4 inmate, meaning he was supposed to be housed in an
inpatient hospital facility. Even if he had been designated a Care Level 3 inmate, he was
supposed to receive more psychiatric support than he received, including “enhanced” care of at
least weekly mental health interventions, based on BOP regulations. There is no record that he
PAGE 24 – OPINION AND ORDER
received any psychiatric care before his death after his February 19, 2015 entry screening. A
reasonable factfinder could conclude that it was reasonably foreseeable that putting an inmate
with Mr. Hill’s specific background of mental health issues and medication abuse in general
population and without the required psychiatric support could lead to his death. Further,
regardless of Dr. Pelton’s individual knowledge, the record shows that BOP had knowledge that
a Zoloft overdose could contribute to death.
CONCLUSION
The Court DENIES Defendant’s Motion for Summary Judgment (ECF 63).
IT IS SO ORDERED.
DATED this 24th day of September, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 25 – OPINION AND ORDER
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