Burns v. Robertson County, Tennessee et al

Filing 63

MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 6/13/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SHERRIE BURNS, Individually and as
Administratrix of the Estate of Matthew
J. Burns, deceased,
Plaintiff,
v.
ROBERTSON COUNTY,
TENNESSEE, et al.,
Defendants.

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NO. 3:13-cv-974
JUDGE CRENSHAW

MEMORANDUM OPINION
Matthew J. Burns committed suicide in the Robertson County Detention Facility (RCDF).
His mother, Sherri Burns, brings this case individually and as the Administratrix of her son’s estate
alleging violations of the Fourteenth Amendment to the Constitution. Specifically, Ms. Burns
against Robertson County, Tennessee and others, alleging that RCDF’s customs and policies
regarding identification and treatment of detainees who are suicidal constitutes deliberate
indifference to her son’s serious mental health care needs to prevent his suicide. Defendants have
moved for summary judgment on all claims. For the reasons that follow the Court finds disputed
issues of material fact. Accordingly, Defendants’ motion for summary judgment is DENIED.
I.

Factual Background
A. Matthew Burns’ Mental Health
Mr. Burns enjoyed a job and close relationships with his mother, sister, and infant son. In

his late teens or early 20s, he was in an accident. This led to his dependency on pain medications,
which affected his mood and behavior. (Doc. No. 44 at 2-3.) During the same period, Mr. Burns

was forced to acknowledge that his father sexually molested him when he was a small child, and
his relationship with his mother and sister deteriorated as a result. (Id. at 3.) His psychiatrist
diagnosed him with severe depression and bipolar disorder. (Id.) In the year before he committed
suicide in the RCDF, he received treatment at both a mental health facility and a detoxification
facility. (Id.) Approximately five months before his death, he was hospitalized for an overdose of
medication, which his family members believed to be a deliberate suicide attempt, although Mr.
Burns denied suicidal intent. (Id.) In the months before his suicide, Mr. Burns was taking the drug
“Trileptal” for his bipolar disorder and “Neurontin” for the severe pain he experienced from his
accident. (Id.) In the weeks before his arrest, Mr. Burns’s conduct had become increasingly
unusual, and his family was concerned for his well-being. (Id.) Mr. Burns’s abnormal behavior
culminated in his robbing a bank. (Id.)
B. RCDF’s Treatment of Mr. Burns
On the day the FBI arrested Mr. Burns for the bank robbery, Major Tony Crawford, Jail
Administrator at RCDF, received three telephone calls from individuals relaying concerns that Mr.
Burns was at risk for committing suicide. (Doc. No. 43 at 2.) At the time he received these calls,
Major Crawford was not yet aware of whether agents with the United States Marshals Service
would transport Mr. Burns to RCDF or to one of the other facilities that house federal pre-trial
detainees. (Id.) The first call was from someone Major Crawford believes was affiliated with either
the Sumner County Sherriff’s Department or the White House Police Department, and that
individual told Major Crawford that Mr. Burns’s family was very concerned about him. (Id. at 2.)
The second call was from one of the agents transporting Mr. Burns, relaying the concerns of Mr.
Burns’s family. (Id. at 2-3.) Major Crawford received these two telephone calls before noon. (Id.

2

at 3.) A third call came from Mr. Burns’s federal public defender, who also relayed the family’s
concerns about Mr. Burns’s mental health and risk of suicide.
After receiving the telephone calls, Major Crawford contacted Nurse Janie Russell, the
medical team administrator, to relay the information from the telephone calls and to instruct her to
ensure that Mr. Burns was screened immediately after being booked into the jail, rather than within
the 24-hour time-frame typically employed for federal inmates. (Id.) Nurse Russell told Major
Crawford that having Mr. Burns screened would not be a problem. (Id.) Major Crawford did not
put anything in writing. When he left at 4:00 p.m. that day, Major Crawford was still unsure
whether federal agents would bring Mr. Burns to the RCDF, but instructed the correctional officers
at the booking desk to have medical staff screen all new federal detainees before they were
assigned to a housing unit to ensure that Mr. Burns would be screened upon arrival. (Id. at 4.) The
content of the telephone calls Major Crawford had received about concerns related to Mr. Burns’s
mental health issues or risk of suicide were never relayed to the licensed nurse practitioner (LPN),
Elizabeth Chezem, who conducted Mr. Burns’s medical screening later that night. (Id.) The Jail
did not have a policy in place that provided that the information contained in telephone calls such
as these were to be documented and transmitted to the LPN who conducted the medical screenings
at the Jail during the night shift.
On September 14, 2012, federal agents brought Mr. Burns to RCDF at 6:00 p.m.
Correctional staff placed him in a holding cell in the booking area to await booking and medical
screening. (Id. at 5.) At 10:20 p.m., a correctional officer started the booking process, which
included an initial medical screening. (Id.) Pursuant to normal procedure, Mr. Burns prepared and
signed a “History and Physical Form,” on which he wrote that he was taking medications called
“Trileptal” and “Neurontin.” (Doc. No. 45 at 68-69; 40-2 at 11.) Under the mental health section

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of the form, Mr. Burns wrote “no” beside questions about whether he had been hospitalized for
mental health issues, whether he had any “prior counseling/outpatient Mental Health Tx,” whether
he had ever attempted suicide, and whether he had recently considered committing suicide. (Id. at
68.) The RCDF medical screening process also required the booking officer to indicate whether
Mr. Burns exhibited any signs of abnormal behavior and whether his behavior or appearance
suggested the risk of suicide. (Id. at 70.) The officer wrote “no” beside these questions. (Id.) RCDF
also required the officer to ask Mr. Burns whether he had ever been treated for a mental disorder
or attempted suicide, and the officer wrote “no” next to those questions as well. (Id. at 70.) After
this initial medical screening, Mr. Burns was returned to a holding cell to be further evaluated by
medical staff. (Doc. No. 43 at 5.)
On the evening of September 14, 2012, Nurse Chezem, who worked the night shift,
evaluated Mr. Burns. (Id. at 6.) Nurse Chezem is an employee of Southern Health Partners
(“SHP”), a private company that contracts with RCDF to provide medical services to individuals
detained at the Jail. (Id.) Nurse Chezem is a Licensed Practical Nurse (“LPN”), which required
twelve months of study at a vocational school. (Doc. No. 40-2 at 5.) She was the only medical
personnel at the Jail the night Mr. Burns arrived, although she had the ability to call a physician or
“medical team administrator” with SHP by telephone if necessary. (Id. at 7.)
Nurse Chezem conducted a physical examination, administered a TB skin test, and
reviewed the History and Physical screening form completed by Mr. Burns and the booking
officer. (Doc. No. 42 at 6; 40-2 at 9-10.) She asked Mr. Burns if he had thoughts of suicide, and
wrote on the form, based on his response, “no thoughts of suicide.” (Doc. No. 45 at 69; 40-2 at
12.) The U.S. Marshals Service had previously completed another form that indicated Mr. Burns
had a diagnosis of depression and bipolar disorder, but Nurse Chezem denies having seen that

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form. (Doc. No. 40-2 at 14.) She was also never told about the three telephone calls Major
Crawford had received about family members’ concerns about Mr. Burns’s mental health and risk
of suicide. Following Nurse Chezem’s physical examination, Mr. Burns was placed back in a
holding cell and eventually assigned to a cell in the general population. (Doc. No. 43 at 7.) She
placed the medical forms in Mr. Burns’s chart and then into a file for the doctor to evaluate when
he came in for his weekly rounds. Mr. Burns committed suicide two days later, before the doctor
came in for his weekly visit. (Doc. No. 40-2 at 10, 12.) Nurse Chezem was the only medicallytrained person who ever screened Mr. Burns for mental health issues. (Doc. No. 45 at 5-6.) Mr.
Burns received no care for his mental health issues. RCDF did not administer any medications to
him, either for his pain or for his bipolar disorder.
Although Mr. Burns had indicated on the History and Physical form that he took Trileptal
and Neurontin, Nurse Chezem had no knowledge about the purpose of those medications, their
side effects, or the risks of abruptly ending the medications. Nurse Chezem made no effort to
obtain further information about the medications. (Doc. No. 40-2 at 15-17, 19; 45 at 6, 68-70.)
Trileptal is routinely prescribed for various mental health disorders, including bipolar disorder,
with which Mr. Burns had been diagnosed. These medications are both anti-seizure medications,
and both are known to increase the risk of suicide. (Doc. No. 44 at 3; 45 at 66-67, 71-73.) Abrupt
cessation of these medications also increase the risk of suicide. These risks can be readily verified
in official and unofficial medical publications available on the internet. (Doc. No. 45 at 62-67, 7173.) Because Nurse Chezem did not inquire about the purposes of the medications, did not receive
information about the family members’ concerns about Mr. Burns’s mental health, and did not see
the form that indicated that he was bipolar, the only basis for her determination that Mr. Burns
posed no suicide risk was his own statement to her denying any history of suicide attempts or

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current suicidal ideation and her observation of his demeanor. (Id.) Indeed, Nurse Chezem was
surprised Mr. Burns had committed suicide because he had not indicated to her that he had any
suicidal thoughts. (Doc. No. 40-2 at 8-9, 16.)
On the afternoon of September 16, 2012, after being alerted by inmates that Mr. Burns was
injured, correctional officers went to Mr. Burns’s cell and found him on the floor, unresponsive.
(Doc. No. 43 at 8.) The officers, and then a nurse, performed chest compressions on Mr. Burns.
Emergency Medical Service arrived and transported him to NorthCrest Medical Center, from
which Mr. Burns was transported to Vanderbilt University Medical Center. (Id.) Soon after
arriving at Vanderbilt, Mr. Burns’s attending physician pronounced him dead. (Id. at 9.)
C. Robertson County’s Policies and Practices on Mental Health Services and
Suicide Prevention
On July 13, 2010, over two years prior to Mr. Burns’s death, the Civil Rights Division of
the United States Department of Justice (DOJ) notified Robertson County (“the County”) of its
intention to conduct an investigation of the conditions at the RDCF regarding its provision of
nutrition and medical care. (Doc. No. 45 at 13-14.) The United States Attorney for the Middle
District of Tennessee requested that the DOJ conduct such an investigation after receiving
complaints from prisoners regarding the RCDF’s failure to provide adequate nutrition and medical
care. (Id. at 13.)
On August 11, 2011, the DOJ issued its written report, which, in part, stated as follows:
While we found RCDF’s practices with respect to nutrition, medical care, and
environmental health and safety adequate or minimally adequate to comply with
the Constitution, we found a pattern or practice of constitutional violations in
RCDF’s provision of mental health care. Specifically, RCDF’s mental health
practices place prisoners at a substantial and unreasonable risk of serious harm.
(Id. at 13.) The DOJ’s report contained a “Summary of Findings and Conclusions,” which included
the following:
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We have concluded that Robertson County (“the County”) fails to provide mental
health care to prisoners at RCDF in violation of the Fourteenth Amendment to the
Constitution. Addressing these deficiencies should be RCDF’s highest priority, as
we believe that these lapses, if not corrected, have a strong likelihood of resulting
in unnecessary injury and/or loss of life. Our specific findings of practices that do
not comport with the requirements of the Constitution include:
•

RCDF fails to protect prisoners from harm by permitting Licensed Practical
Nurses (“LPNs”)—individuals with little or no mental health training—to
independently manage suicide precautions. The Constitution requires the Jail to
provide prisoners with mental health needs with access to medical personnel
who are qualified to diagnose and treat mental illness.

•

RCDF fails to provide prisoners with serious mental illnesses with timely and
competent mental health care. Specifically, (a) prisoners with chronic mental
illnesses who are not capable of requesting mental health care are effectively
denied treatment; (b) prisoners who request mental health care experience
delays that violate constitutional standards; and (c) nurses are responsible for
providing mental health care beyond their training and qualifications.

(Id. at 14.)
The report elaborated as follows:
•

Presently, RCDF’s sole physician is the only RCDF staff person qualified based on
his training to conduct [ ] a reasoned assessment [or evaluation of the patient’s
suicide risk]. He is only onsite two hours each week and there is no psychiatrist on
staff. Despite his limited time onsite, the physician acts as the Medical Director and
is responsible for overseeing RCDF’s entire clinical operation and for providing
direct patient care for prisoners with medical or mental health care needs. To
compensate for the lack of onsite physician time, the nursing staff provide clinical
care that exceeds their licensure and training. RCDF’s policies recognize that LPNs
are not qualified or trained to independently make a reasoned assessment or
evaluation of a prisoner’s suicide risk.

•

SHP policies reflect the need for a psychiatric provider at RCDF. For example, the
Chronic Care Protocols state that after the medical staff and psychiatric nurse
screen an inmate, “a referral may be made to see the Psychiatrist.”

•

RCDF’s use of LPNs to make determinations regarding suicide precautions
deviates from minimum constitutional requirements, RCDF’s own policies,
medical community practice, and the recommended guidelines of the National
Committee for Correctional Health Care (“NCCHC”), and ultimately places
prisoners at risk of serious harm. See Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir.
1980) (finding that prison officials failed to provide constitutionally adequate
medical care where non-physician medical staff were “being used as ‘physician’s
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substitutes’ and . . . being forced to make decisions and perform services for which
they are neither trained nor qualified.”).
•

The physician and psychiatric nurse have little or no involvement in the
management of suicide precautions.

•

Mental health services at RCDF are primarily provided at the request of the
prisoners. As a result, prisoners who are too ill to write a request for an appointment
are, in effect, denied constitutionally adequate mental health care. See Casey v.
Lewis, 834 F. Supp. 1477, 1550 (D. Ariz. 1993) (finding prison officials
deliberately indifferent where “severely mentally ill inmates cannot make their
needs known to mental health staff.”. . . This practice places seriously mentally ill
prisoners at considerable risk of harm, including decompensation.

•

RCDF’s mental health care system fails to provide timely treatment in violation of
the Constitution. See LeMarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir. 2001) (“[A]
deliberately indifferent delay in giving or obtaining treatment may also amount to
a violation under the Eighth Amendment. Even those prisoners who are able to
request mental health services must wait significant periods of time before seeing
the psychiatric nurse. The psychiatric nurse works at the facility one day per week
for six to eight hours and essentially acts as the sole provider of mental health care
to RCDF prisoners. Our review revealed that, on average, it takes approximately
two to three weeks for the psychiatric nurse to respond to a prisoner referral. . . .
[Even short delays for mental health care] deny prisoners access to medical care
when the need is urgent. See, e.g., Fitzke v. Shappell, 468 F.2d 1072, 1076-77 (6th
Cir. 1972 (delay of 12-17 hours in receiving treatment where circumstances
indicated prompt need for medical attention stated a cause of action for denial of
medical care).

•

RCDF’s practice of permitting nurses who are not trained and qualified to provide
mental health care to manage psychotropic medications and treat prisoners with
serious mental health needs violates the Constitution and generally accepted
practices. See, e.g., Inmates of Allegheny Cty.] Jail v. Pierce, 612 F.2d 754, 762
(3d Cir. 1979)]; Balla [v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1577 (D.
Idaho 1984)] (finding that “minimally adequate psychiatric care” includes adequate
coverage by a psychiatrist “to provide treatment to those inmates capable of
deriving benefit”).

•

The “appropriate supervision and periodic evaluation” of prisoners on psychotropic
medications is “constitutional minima . . . specific to mental health care.” Madrid
v. Gomez, 889 F. Supp. 1146, 1258 (N.D. Cal. 1995). RCDF prisoners are being
treated with anti-psychotics and major mood stabilizers. Yet, the physician does not
consistently evaluate prisoners on psychotropic medications, nor does he review
the prescribed psychotropic medications to ensure their appropriateness and to
prevent negative interactions with other medications. Instead, the psychiatric nurse

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essentially prescribes and manages medications for patients with mental conditions,
responsibilities that are beyond the scope of a nurse’s training.
(Id. at 17-22.)
The DOJ report is replete with citations to legal authority to support its detailed analysis of
the constitutional deficiencies in RCDF’s policies and procedures on providing mental health care
to detainees, such as Mr. Burns. As it pertains to inmates with suicidal tendencies, the DOJ report
explains:
The Constitution protects prisoners not only against ongoing harms, but also
against the risk of future harm. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That
the Eighth Amendment protects against future harm to inmates is not a novel
proposition . . . . It would be odd to deny an injunction to inmates who plainly
proved an unsafe, life-threatening condition in their prison on the ground that
nothing yet had happened to them.”). Conditions posing a substantial risk of serious
harm to prisoners therefore violate the Constitution, even if no prisoner has suffered
actual harm at the time the violation is found. See Farmer, 511 U.S. at 84547; Helling, 509 U.S. at 35 (finding that risk of future harm to prisoner’s health
stated a cause of action under the Eighth Amendment); Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 899 (6th Cir. 2004 (noting that the Constitution “does not
require actual harm to be suffered”). The Supreme Court has clearly stated that “a
remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at
33.
***
Prisoners have an “established right to medical attention once . . . prisoner[s’]
suicidal tendencies are known” to prison officials. Comstock v. McCary, 273 F.3d
693, 711 (6th Cir. 2002). Medical attention provided solely by nurses who are not
qualified and trained to treat prisoners’ psychiatric needs is not sufficient to meet
constitutional standards. Rather, prisoners with psychiatric needs have a right to
“reasonable access to medical personnel qualified to diagnose and treat” mental
illness. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(emphasis added). RCDF violates this basic tenet by permitting its LPNs—
individuals with little or no mental health training—to both place prisoners on and
remove them from suicide watch.
[The Constitution requires] that, at a minimum, correctional mental health
programs must include “a basic program for the identification, treatment, and
supervision of inmates with suicidal tendencies.” Ruiz v. Estelle, 403 F. Supp.
1265, 1339 (S.D. Tex. 1980), aff’d in part and rev’d in part on other grounds, 679
F.2d 1115 (5th Cir. 1982); see SHP Suicide Prevention Policy (requiring staggered
checks every 10-15 minutes); see also, Lindsay M. Hayes, Guide to Developing
and Revising Suicide Prevention Protocols Within Jails and Prisons, Nat’l Ctr. on
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Insts. & Alternatives 5 (2011) (recommending that a prisoner who is actively
suicidal should be observed “on a continuous, uninterrupted basis,” and a prisoner
who is “not actively suicidal, but expresses suicidal ideation . . . and/or has a recent
prior history of self-destructive behavior” should be observed “at staggered
intervals not to exceed every 10 minutes (e.g., 5, 10, 7 minutes)).”
(Doc. No. 45 at 16-17, 19.)
In light of the deficiencies identified in the report, the DOJ requested that the County “promptly
implement,” among others, the following “minimum remedial measures”:
•
•

[E]nsure that those prisoners identified as potentially suicidal are on constant watch
until they receive their mental health assessment.
Develop more defined referral parameters to ensure that prisoners with mental
health needs are referred to the physician. Intake staff and nurses must be provided
with clear guidance regarding which prisoners should be referred to the physician
and how quickly that referral should take place. These guidelines should require an
immediate referral for emergent issues, a referral within 24 hours when an
expedited evaluation is necessary, and a referral within 72 hours for a routine
evaluation.

•

Enhance communication between custodial and medical staff and implement
policies and procedures that provide for the timely treatment and regular monitoring
of prisoners on suicide watch.

•

Institute a chronic care program to address the needs of prisoners with serious
mental illnesses. . . . Basic services must include, at a minimum:
1. Identification and referral of inmates with mental health needs;
2. Crisis intervention services;
3. Psychotropic medication management, when indicated;
4. Individual counseling, group counseling, psychosocial/psycho-educational
programs; and
5. Treatment documentation and follow up.

(Id. at 28-29.)
Tragically, at the time Mr. Burns committed suicide on September 16, 2012, the County
had implemented no written policy changes after the DOJ’s August 11, 2011 report. Just before
the report was issued, on August 3, 2011, the County had approved a Suicide Prevention Policy,
presumably in anticipation of the forthcoming report, which describes the screening process Nurse
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Chezem performed on Mr. Burns, namely asking the inmate if he has ever attempted suicide or
currently has suicidal feelings, and only referring the inmate to the medical staff if the inmate’s
response to one or both of those questions is affirmative (Doc. No. 47-2 at 2-3.) The other written
policy changes identified by the County are sadly dated after Mr. Burns’s death. (Doc. No. 45 at
8-9; 47-2 at 4-32.)
On April 26, 2013, the DOJ filed in this District a lawsuit against Robertson County,
Tennessee, based on alleged violations of the Civil Rights of Institutionalized Persons Act of 1980,
42 U.S.C. §§ 1997 et seq., seeking injunctive relief. (Case No. 3:13-cv-392.) On April 30, 2013,
the Court entered the parties’ settlement agreement, which obligated the County to make numerous
changes to its policies related to mental health treatment to inmates with suicidal tendencies,
including, as relevant here, the following provisions:
•

Implement a suicide screening instrument that includes, among other things, consideration
of prior mental illness treatment and medication history.

•

Conduct appropriate mental health assessments that include an assessment of a diagnosis
such as bipolar disorder.

•

Ensure that all mental health care staff within the Jail have access to critical information
for prisoners on suicide precautions.

•

Ensure that all prisoners are appropriately screened for mental illness using an
appropriately validated screening instrument.

•

Ensure that treatment plans adequately address prisoners’ serious mental health needs and
that the plans contain interventions specifically tailored to the prisoners’ diagnoses and
problems.

•

Ensure adequate on-site psychiatric coverage for prisoners’ serious mental health needs
and ensure that psychiatrists see such prisoners in a timely manner.

•

Ensure that prisoners have proper diagnoses made by a psychiatrist, psychologist or
medical doctor for each psychotropic medication they receive.

•

Ensure a medication continuity system so that incoming prisoners receive psychotropic
medications for serious mental health needs in a timely manner, as medically appropriate.
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•

Ensure that individuals receiving psychotropic medication are adequately monitored for
potential negative side-effects of such medications.

(Doc. No. 45 at 43-49.) These changes came too late to save Mr. Burns.
II.

Legal Standard
Summary judgment is appropriate where there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v.
State Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the
summary judgment motion has the initial burden of informing the Court of the basis for its motion
and identifying portions of the record that demonstrate the absence of a genuine dispute over
material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). “The moving party may
satisfy this burden by presenting affirmative evidence that negates an element of the non-moving
party’s claim or by demonstrating ‘an absence of evidence to support the nonmoving party’s
case.’” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the moving party is able
to meet this initial burden, the non-moving party must then “set forth the specific facts showing
that there is a genuine issue for trial.” Id. (quoting Fed. R. Civ. P. 56(e)).
III.

Legal Analysis
Plaintiff brings this action under 42 U.S.C. § 1983 against Robertson County, Sherriff Bill

Holt, and Major Tony Crawford, the Jail Administrator. To succeed on a claim for a violation of
§ 1983, a plaintiff must establish that he was denied a constitutional right and that the deprivation
was caused by a defendant acting under color of state law. 1 Carl v. Muskegon Cty., 763 F.3d 592,
595 (6th Cir. 2014).

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Robertson County argues that it cannot be liable under § 1983 because the alleged violation was committed
by Nurse Chezem, who was an employee of the private company the County contracted with to provide
medical services, not the County itself. However, Robinson County “may not escape § 1983 liability by
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Plaintiff has voluntarily dismissed her claims against Holt and Crawford in their individual
capacities, and only pursues claims against these individuals in their official capacities. (Doc. No.
42 at 32.) A suit against an individual in his official capacity is the equivalent of a suit against the
governmental entity employing him. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as
the government entity receives notice and an opportunity to respond, an official-capacity suit is,
in all respects other than name, to be treated as a suit against the entity.”); Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994). Thus, Plaintiff’s only claims are, effectively, only against
Robertson County.
Municipalities are “persons” for purposes of § 1983 liability. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). However, municipalities are only responsible for “their own illegal
acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). “Municipal liability
must rest on a direct causal connection between the policies or customs of the city and the
constitutional injury to the plaintiff; ‘respondeat superior or vicarious liability will not attach
under § 1983.’” Gray v. City of Detroit, 399 F.3d 612, 617 (6th Cir. 2005) (quoting City of Canton
v. Harris, 489 U.S. 378, 389 (1989)); Monell, 436 U.S. at 691. A plaintiff seeking to impose
liability under § 1983 must demonstrate that, “through its deliberate conduct, the municipality was
the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997). “That is, a plaintiff must show that the municipal action was taken with the requisite degree

contracting out or delegating its obligation to provide medical care to inmates.” Carl v. Muskegon Cty.,
763 F.3d 592, 596 (6th Cir. 2014) (citing Estelle, 429 U.S. at 104. The government has the “affirmative
obligation to provide adequate medical care” to those in its jails. West v. Atkins, 487 U.S. 42, 56 (1988).
“Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate
medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to
vindicate their constitutional rights.” Id. The Sixth Circuit has held that private entities and medical
providers serving inmate populations are state actors for purposes of § 1983. Carl, 763 F.3d at 596 (citing
cases). Thus, that Robertson County contracted with SHP to provide for the medical needs of pretrial
detainees in its jails does not allow it to avoid liability under § 1983.

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of culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Id.; see also City of Canton v. Harris, 489 U.S. 378, 385 (1989)
(“[O]ur first inquiry in any case alleging municipal liability under § 1983 is the question whether
there is a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation.”).
The Sixth Circuit has articulated the proper analysis for municipal liability under § 1983
in the specific context of an inmate’s suicide:
A municipality may be liable under § 1983 where the risks from its decision not to
train its officers were “so obvious” as to constitute deliberate indifference to the
rights of its citizens. As applied to suicide claims, the case law imposes a duty on
the part of municipalities to recognize, or at least not to ignore, obvious risks of
suicide that are foreseeable. Where such a risk is clear, the municipality has a duty
to take reasonable steps to prevent the suicide.
Gray v. City of Detroit, 399 F.3d 612, 618 (6th Cir. 2005).
A. Constitutional Right
While the Eighth Amendment does not apply to pretrial detainees, the Due Process Clause
of the Fourteenth Amendment provides them with a right to adequate medical treatment that is
analogous to prisoners’ rights under the Eighth Amendment. Gray, 399 F.3d at 615-16. A
detainee’s constitutional rights are violated “when prison doctors or officials are deliberately
indifferent to the prisoner’s serious medical needs.” Comstock v. McCrary, 273 F.3d 693, 703 (6th
Cir. 2001). A medical professional’s negligence in diagnosing or treating a medical condition does
not violate the Constitution. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Eighth Amendment
context). Only “acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs” rise to the level of constitutional violation See id. In this Circuit, providing
“grossly inadequate medical care” to an involuntary detainee may amount to deliberate
indifference. Miller v. Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005). “Grossly inadequate
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medical care is medical care that is so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.” Id.
A constitutional claim for deliberate indifference contains both an objective and a
subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component
requires a plaintiff to show the existence of a “sufficiently serious” medical need. Id. A serious
medical need is “one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004). Mental illness that
places an individual at risk of committing suicide satisfies the objective component of a deliberate
indifference claim. See Comstock v. McCrary, 273 F.3d 693, 711 (6th Cir. 2001) (noting
that Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) had recognized “implicitly that suicidal
condition is serious medical condition which requires medical attention).

The subjective

component, in contrast, requires a plaintiff to “allege facts which, if true, would show that the
official being sued subjectively perceived facts from which to infer substantial risk to the prisoner,
that he did in fact draw the inference, and that he then disregarded that risk.” Comstock, 273 F.3d
at 703 (citing Farmer, 511 U.S. at 837).
Here, there are no remaining claims against individual officials, so the Court does not
consider what any particular county official subjectively perceived, but instead applies the
“deliberate indifference” standard to the County. Perez v. Oakland Cty., 466 F.3d 416, 430-31 (6th
Cir. 2006) (citing Gray v. City of Detroit, 399 F.3d 612, 616–18 (6th Cir. 2005); Barber v. City of
Salem, 953 F.2d 232, 238–40 (6th Cir.1992)). “As applied to suicide claims, the case law imposes
a duty on the part of municipalities to recognize, or at least not to ignore, obvious risks of suicide
that are foreseeable. Where such a risk is clear, the municipality has a duty to take reasonable steps

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to prevent the suicide.” Gray, 399 F.3d at 618. “‘[D]eliberate indifference’ is a stringent standard
of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Perez, 466 F.3d at 330-31 (quoting Board of County Comm’rs of Bryan County v. Brown,
520 U.S. at 410)).
The County cites several cases for the proposition that there is no clearly established right
for a particular inmate to be protected from committing suicide. (Doc. No. 40 at 12-13.) For
example, the County quotes the following from the Sixth Circuit’s opinion in Gray, 399 F.3d at
612:
[T]here is no general constitutional right of detainees to receive suicide screenings
or to be placed in suicide safe facilities, unless the detainee has somehow
demonstrated a strong likelihood of committing suicide. See Danese v. Asman, 875
F.2d 1239, 1244 (6th Cir.1989); Crocker v. County of Macomb, 119 Fed. App’x.
718, 724 (6th Cir. 2005) (unpublished) (finding no change in the law since Danese
was decided in 1989). As one commentator put it, “[a] right to screening for suicidal
propensities or tendencies arises when it is obvious that an inmate has such
tendency or propensity” (emphasis added)—in other words, when the suicide is
clearly foreseeable. George J. Franks, The Conundrum of Federal Jail Suicide Case
Law Under Section 1983 and Its Double Bind for Jail Administrators, 17 Law &
Psychol. Rev. 117, 125 (1993).
Id. at 616. However, the Sixth Circuit “has consistently recognized a prisoner’s established right
to medical attention once the prisoner’s suicidal tendencies are known.” Comstock v. McCrary,
273 F.3d 693, 711 (6th Cir. 2001) (emphasis added) (citing cases).
The trier of fact may find that the County was aware of Mr. Burns’s suicidal tendencies, as
the result of three telephone calls made to the Jail by his family members and attorney, within
hours of his arrival. As a result, a trier of fact could conclude that the County was constitutionally
obligated to provide him with medical attention that was not “grossly inadequate,” Miller v.
Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005), and that it failed to meet that standard.

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The trier of fact may conclude that the County was also aware, or should have been aware,
of “obvious risks of suicide that [were] foreseeable,” which it failed to recognize, “or at least
[should] not ignore.” Gray, 399 F.3d at 618. If the County was unaware of the risk of inmates’
suicides created by its policies and customs before the DOJ’s investigation, the DOJ’s report made
it as clear as water from a snow top mountain by providing explicit and detailed analysis about the
ways in which the County’s mental health care was deficient as well as the measures the County
needed to implement immediately in order to avoid that risk.
The failures that a trier of fact may find caused the deprivation of Mr. Burns’s due process
rights and ultimately led to his death include: failure to have a reliable procedure for relaying the
mental health concerns of a detainee’s family members and attorney to those providing mental
health care in the Jail; failure to have an adequately trained professional conducting medical
intakes who could properly identify mental health issues without relying solely on an inmate’s
self-reporting; failure to have an appropriately trained professional review the information
collected by an LPN in a timely manner after a detainee enters the facility; and failure to ensure
that detainees continue to receive the psychotropic medications they have been prescribed by a
mental health professional in the community.
The record before this Court would support the finding that the County’s policies and
customs on the provision of medical care to detainees with suicidal indications was “grossly
incompetent” or “inadequate” as to amount to deliberate indifference. Miller v. Calhoun Cty., 408
F.3d 803, 819 (6th Cir. 2005). Some of the facts a jury might find include the County’s reliance
on the same LPN to screen new detainees that the DOJ had described over a year earlier as lacking
the proper qualifications to conduct suicide or other mental health assessments. Nurse Chezem
claims she had not seen the form that indicated that Mr. Burns was bipolar, but also indicates that

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she had little knowledge of the significance of that diagnosis. She also had no knowledge of the
purpose of the medications Mr. Burns was taking, the risks associated with taking the medications
individuals and in combination, or the risks of abruptly ending the medications. She neither
independently investigated those issues nor alerted her medical supervisors about Mr. Burns’s
medications. There is no evidence in the record that she was trained to do differently or that she
failed to follow procedures in place that would have avoided this situation. Indeed, she reviewed
the screening forms that Mr. Burns and a correctional officer had completed and completed the
one she was required to complete. She complied with the suicide prevention policy that was in
place. The only supervision in place to review the LPN’s screening was a once-a week physician
visit to the facility to review the files. Mr. Burns’s suicide within two days of entering the Jail
tragically demonstrates that the supervision in place to review the LPN’s assessment of the medical
needs of recent detainees was inadequate and untimely. A jury could find that the policies and
practices in place were so inadequate and incompetent as to shock the conscience.
A trier of fact could also determine that, if the County had heeded the DOJ’s requested
changes to its policies and practices, Mr. Burns might well be alive today. If not, at least the County
would have met its constitutional “duty to take reasonable steps to prevent [his] suicide.” Gray v.
City of Detroit, 399 F.3d 612, 618 (6th Cir. 2005). Although “’deliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action,” Perez, 466 F.3d at 330-31, and the Sixth Circuit has noted that “[v]ery
few cases have upheld municipality liability for the suicide of a pre-trial detainee,” Gray, 399 F.3d
at 618, the Court concludes that a trier of fact here could find that the Plaintiff has met this standard.

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B. Moving Force
Plaintiff has presented sufficient evidence from which a jury could conclude that the
County’s “deliberate conduct” was the “moving force” behind Mr. Burns’s death. Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 404 (1997). The DOJ need not issue a detailed report about a
jail’s unconstitutional provision of medical care for a plaintiff to prevail on a deliberate
indifference claim. Yet here, the County had the remarkable benefit of an eighteen-month
investigation by the DOJ and a report setting forth in great detail what the County needed to do to
bring its mental health care for detainees into constitutional compliance. A jury could find that the
County did not take sufficient steps to implement the changes requested by the DOJ, which were
specifically designed to prevent detainees from harming themselves. Over a year after the DOJ’s
report, the County had done little to implement the recommended changes.
C. Similar Cases
This Court’s decision denying summary judgment is in accord with that of other courts that
have found relevant a county’s awareness of the unconstitutionality of its provision of medical or
mental health care to inmates because of a DOJ report. For example, in Shepherd v. Dallas County,
a pretrial detainee obtained a jury verdict of $890,336 after he suffered a stroke and became
permanently disabled due to the failure of the Dallas County Jail to administer the medications he
needed to manage his chronic hypertension. 591 F.3d 445,449 (5th Cir. 2009). The Fifth Circuit
found that the jury’s verdict was supported by sufficient evidence, because the plaintiff had shown
that the jail’s failure “was not an unintended error but the predictable result of a de facto policy
that denied inmates adequate care for chronic conditions.” Id. at 449, 456. The court also concluded
that the district court did not err by admitting a DOJ report that had concluded that the jail was
operating in violation of inmates’ constitutional right to adequate medical care, by, among other

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things, failing to adequately identify inmates’ health needs through appropriate intake screening,
failing to timely and consistently administer treatment and medications, and failing to assess and
monitor inmates’ chronic illnesses. Id. at 451, 456-57 (“The findings in the DOJ report were
undoubtedly prejudicial to the County’s cause, but they were probative as well.”).
In Shorter v. Baca, a district court denied a motion for summary judgment made by a
county, sheriff, and deputies on a pretrial detainee’s claims that the jail had violated her
constitutional rights to adequate medical care, sanitary living conditions, adequate nutrition, clean
clothes, exercise, and right to be free of overly invasive searches. 101 F. Supp. 3d 876 (C.D. Cal.
2015). The court held that a reasonable juror could find, given the lack of training and procedures
identified in a letter from the DOJ and a report issued by a county committee, “that the County
knew, and simply did not care” about the alleged constitutional violations. Id. at 907. The court
further held that the county report and DOJ investigation demonstrated that the sheriff “was aware
of unconstitutional conditions in his jails and failed to take action to ensure that policies were
implemented to prevent the mistreatment of prisoners.” Id. at 908.
Finally, in Jones v. Gusman, detainees sued a sheriff alleging unconstitutional deficiencies
in medical and mental health care among other issues in the city’s jails. 296 F.R.D. 416 (E.D. La.
2013). The United States, which had issued a letter to the city finding constitutional violations in
these areas two years earlier, intervened. The district court eloquently expressed the importance of
constitutional protections for incarcerated individuals:
The federal rights at issue here, particularly with respect to the Constitution,
establish minimum standards rather than ideals to which a correctional institution
may aspire. These minimum standards are nonnegotiable. The Constitution
guarantees that inmates, including convicted inmates and pretrial detainees who are
presumed innocent, receive certain minimum levels of medical care and mental
health care.

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Id. at 469.
A trier of fact in this case could conclude that Robertson County treated the DOJ’s attempt
to warn it about its unconstitutional of mental health services as aspirational rather than
constitutionally required minimum standards. The Court finds these cases, which arose in very
similar contexts, with counties failing to heed a DOJ report detailing unconstitutional conditions
in their jails, to be instructive in resolving the pending motion for summary judgment by Robertson
County. Indeed, given the similarities between these cases and this one, Robertson County would
be well served to at least consider them and the attendant risks as this case goes forward.
IV.

Conclusion
The record before the Court, when viewed in the light most favorable to the Plaintiff, shows

that a jury could find that Robertson County was deliberately indifferent to Mr. Burns’s medical
needs and that its policies and practices caused Mr. Burns’s death. The County’s motion to for
summary judgment (Doc. No. 32) is DENIED.
The Court will enter an appropriate order.

____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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