VIRGINIA EMERSON HOPKINS, Senior District Judge.
In this civil action the Plaintiff, Joey Harper, claims that while he was incarcerated in the Dekalb County Jail (the "Jail") from July 12, 2014, until August 7, 2014, the Defendants violated his rights "as a pretrial detainee under the Fourteenth Amendment in violation of 42 U.S.C. § 1983" when they "were deliberate[ly] indifferent to [his] serious medical needs." (Doc. 1 at 9, ¶¶55, 56) (Count One). The Plaintiff also contends that the Defendants discriminated against him because of a disability in violation of the Americans with Disabilities Act, 42 U.S.C. §§12101-12213 (the "ADA"). (Doc. 1 at 10) (Count Two). The Defendants are: Jimmy Harris, who was the DeKalb County Sheriff at all relevant times; Lieutenant Matt Martin of the DeKalb County Sheriff's Department (the "Sheriff's Department"), who was the Jail administrator at all relevant times; Dr. Robert Theakston, MD, who worked as the Jail physician at all relevant times and also served as the Jail's medical director
The case comes before the Court on the Defendants' Motion for Summary Judgment (the "Motion"). (Doc. 46). For the reasons stated herein the Motion will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
The primary issue in this case is the proper method of treatment of prisoners undergoing withdrawal symptoms while in custody. In 2014, the National Commission on Correctional Health Care stated that "[p]rotocols exist for managing inmates under the influence of alcohol or other drugs and those undergoing withdrawal from alcohol, sedatives, or opioids." (Doc. 52-5 at 2).
(Doc. 52-5 at 2).
(Doc. 52-5 at 2).
(Doc. 52-5 at 3).
The particular drugs the Plaintiff had been prescribed at the time he was incarcerated included Xanax, which is in a class of drugs known as benzodiazepines. In February of 2014, the Federal Bureau of Prisons published a "Clinical Practice Guideline" entitled "Detoxification of Chemically Dependent Inmates" which noted that
(Doc. 52-2 at 14) (emphasis in original). That same report includes the following table:
(Doc. 52-2 at 15).
Pursuant to a formal policy (the "Policy") originally proposed by the DeKalb County Commission, and subsequently adopted by Sheriff Harris on June 1, 2011, narcotic medication is not to be "kept, dispensed, or administered in the Dekalb County Jail." (Doc. 48-25 at 2). The policy limits the use of narcotics to "extreme circumstances that are acute and time limited in nature" (doc. 48-25 at 2), and applies to addictive controlled substances, including narcotics and benzodiazepines. Sheriff Harris testified that he believes that maintaining a non-narcotic jail is safer for inmates, staff, and the community. This belief is based not only on his understanding of the past problems in the Jail, but also on his awareness of other problems that are known to arise in detention facilities because of narcotics, e.g., inducing drug-seeking behavior like self-harm and the attempted theft of medical supplies. In his declaration, Sheriff Harris stated that it was his belief that using narcotics at the Jail was not good public policy because it would, "[i]n a sense, feed the inmates' addiction issues." (Doc. 48-26 at 3, ¶3). According to Darlene Hulgan, who worked in the Jail's medical center, the Policy was necessary because the use of narcotics was a "very big problem" in the Jail. (Doc. 48-7 at 8(26)). She stated in her deposition that "[e]verybody wanted them. Everybody sold them. Everybody traded them back there." (Doc. 48-7 at 8(26)).
Sheriff Harris relies on the medical staff to implement the Policy and treat the inmates at the Jail for symptoms of addiction and withdrawal. He agrees that "this policy has been interpreted by the Jail physician medical staff to not permit narcotics and benzodiazepines, like Xanax, to people [who] are prescribed them." (Doc. 48-8 at 9(30)). He does not know whether prisoners are "even allowed to have those medications in a limited form to wean them off of the medications." (Doc. 48-8 at 9(30)). Instead, when a person is admitted to the Jail and reports having taken a controlled substance, but does not show any signs or symptoms of withdrawal, they will be housed in general population at first. If an inmate starts to have problems or show symptoms consistent with withdrawal, they may be monitored in medical and then housed in a suicide watch cell on medical observation by the Jail staff.
There is not a specific detoxification protocol in place at the Jail. If an inmate is presenting symptoms of withdrawal, Dr. Theakston may prescribe certain medications to them depending on the severity of the withdrawal and the symptoms. However, the policy is that any person who appears to need more or different treatment for withdrawal is to be immediately transported to the hospital for treatment. Medical staff is charged with the implementation of this policy and more generally with healthcare in the Jail. Neither Sheriff Harris nor Lt. Martin are medical professionals, and they do not interfere with or second-guess the judgment of the medical professionals employed at the Jail.
Harris was arrested on July 11, 2014, by the Boaz Police Department for non-payment of child support, and was booked into the Dekalb County Jail on July 12, 2014. During booking, the Plaintiff reported that he took Nitroglycerine, Methadone, Xanax, and Soma
At the time of the events of this case, the Plaintiff was married to Beth Harper, who is now known as Beth Harper Stewart. According to Stewart, at the time the Plaintiff was arrested he was living off of protein shakes and milkshakes and experiencing other issues related to "achalasia restricture," an esophageal condition that limited Harper's ability to take in calories and ultimately required surgery. (Doc. 48-13 at 5(14-15); at 11(39); at 22(82-83)); see also doc. 48-14 at 13-14, 16-17).
On July 14, 2014, Hulgan faxed a request for records to the Plaintiff's physician, Dr. Nicholas C. Pantaleone, asking that Harper's records be provided "ASAP." The Jail summary reflects that a second request had to be sent on August 7, 2014, and that the records were not actually received until August 8, 2014. Dr. Pantaleone had prescribed the Plaintiff 10 mg Methadone, 350 mg Soma, and 2 mg Xanax to be taken three times daily.
On July 15, 2014, at 12:11 p.m., the Plaintiff was seen by Black in medical. Black noted that Harper had complained of being weak and stated "that there are cameras looking into his eyes and reflecting beams back into a helmet." (Doc. 48-17 at 9). Medical notes reflect that Harper's vitals were taken ("blood pressure 125/80, HR 86, Resp. 16, Temp. 97.8 Wt. 210"), and it was noted that he appeared to be "[w]ell nourished and well developed." (Doc. 48-17 at 9). It was noted that the Plaintiff had delusions but no suicidal ideations. Under the Assessment section, was written: "AMS [Altered Mental Status]? Medication Withdrawal." (Doc. 48-17 at 10). Jail records note that one of the Plaintiff's inactive medications was listed to be Xanax. The plan was to take him to DeKalb Regional Medical Center ("DMRC") for further evaluation. It is undisputed that these notes were reviewed by Dr. Theakston.
Thereafter, Black transported the Plaintiff to the hospital. Black could not remember exactly when he notified Dr. Theakston that he had done so, but Black states that he probably would have contacted him afterwards. Black also testified that he would have provided the hospital with the records that he had available.
The nurse's note in the DeKalb Regional Medical Center's records for July 15, 2014, at 12:43 p.m. regarding the Plaintiff states: "Presenting complaint: Patient states: has been off methadone and [X]anax for past 4 days and now having [] altered mental status and seeing things." (Doc. 48-21 at 8). Harper was noted to be well nourished, awake, in no acute distress, and without thoughts of hopelessness/helplessness or suicidal ideation. Harper's weight was listed at 210 pounds. The attending physician, Dr. Shannon Morgan, noted that the Plaintiff refused to answer her questions (although he had answered the triage nurse's questions) but followed direction without difficulty. She noted that he had a history of chronic drug use. Blood tests, an EKG, and a CT scan were all performed. All were normal, except that benzodiazepines and methadone were found in the Plaintiff's system. He was given fluids and Zofran.
At 3:42 p.m. the Plaintiff was discharged and it was noted, "Patient awake, alert and oriented x 3. No cognitive and/or functional deficits noted." (Doc. 48-21 at 9). The Discharge Instructions state, "Narcotic withdrawal — brief." (Doc. 48-21 at 5). Follow-up was recommended in 2-3 days with Dr. Theakston to recheck. The ER records show that Dr. Theakston was contacted and that Dr. Theakston was responsible for continuity of care following discharge.
At 5:36 pm, Lt. Langley completed a note in the Plaintiff's jail records which stated, "Inmate returned from DRMC with diagnosis of opiate withdrawal. He was [discharged] without prescription meds. [H]e was placed in observation in holding area of the jail." (Doc. 48-17 at 11). The plan was to "[m]onitor in holding until further notice." (Doc. 48-17 at 11).
Regarding why the Plaintiff was not admitted to the hospital, the following exchange took place in Dr. Theakston's deposition:
(Doc. 48-3 at 17(62)).
On July 16, 2014, at 11:32 a.m., Lt. Langley made the following note: "Inmate observed in cell sitting on floor looking around. [Five] minutes later inmate slid down the wall to a laying [sic] position on his back. [N]ot responsive to verbal stimuli. [I]nmate was transferred and released from DRMC last date for AMS. His dx [diagnosis] was drug withdrawal." (Doc. 48-17 at 18).
Harper's vitals were taken. Lt. Langley assessed that the Plaintiff possibly had a seizure due to drug withdrawal, but the Plaintiff was not sent to the hospital.
On July 16, 2018, hours after Harper's seizure, Harper made suicide threats and was placed by Smith on a suicide protocol. Harper was placed in an observation cell under 24/7 lighting with a concrete slab for a bunk and without a blanket, mattress, or clothes. At 10:44 p.m., Smith sent an email to Lt. Langley, with a copy to Theakston, reporting that the Plaintiff refused to take the Keppra prescribed to him, that the Plaintiff was "awake and ambulatory" all night but most of his responses were "inappropriate," and that he had been put on suicide protocol. (Doc. 48-17 at 20).
Suicide watch logs appear in the record. These logs began on July 16, 2014, and continued through July 30, 2014, when the Plaintiff was removed from suicide watch. The logs show that Harper was agitated, spent substantial time just screaming (45 entries), did not sleep, only ate limited amounts, and spent hours just lying on his bunk and shaking (61 entries).
At approximately midnight on July 17, 2014, the Plaintiff fell and bumped his head, causing a one-inch laceration. It is unclear from the record whether the Plaintiff had a seizure, but Black agreed in his deposition that "one reason that somebody would fall and bump their head is because they have a seizure." (Doc. 48-5 at 17(62)).
Harper was transported to DeKalb Regional Medical Center by Officer Seth Cagle where he was treated and released. No medications were sent back with the Plaintiff. The physician's note said
(Doc. 48-22 at 4). Except for pain caused by the laceration, the notes indicated that the Plaintiff was ambulatory; in no apparent distress; cooperating; awake, alert, and oriented; and that there were no signs or indications of neglect, such as malnutrition. The Plaintiff also denied suicidal ideation. The laceration was cleaned and stapled, and the Plaintiff was given Zofran again because he complained of nausea. When discharged at 2:20 a.m., the Plaintiff was "awake, alert and oriented x 3. No cognitive and/or functional deficits were noted." (Doc. 48-22 at 7). The Plaintiff's weight was listed as 200 pounds.
In his deposition, Black agreed that there is no evidence that anyone from the Jail had communicated to the hospital during this visit that a previous seizure may have happened. (Doc. 48-5 at 29(112)). Lt. Langley agreed that the hospital should have been given this information. (Doc. 48-2 at 12(44)).
The discharge instructions state that the Plaintiff was to get his staples removed in 9-10 days, which would be around July 27. The Jail medical record does not show that the Plaintiff was taken back to the hospital for staple removal or that they were removed by Jail personnel.
On July 18, 2014, the Plaintiff had his first court appearance. The proceeding was conducted by video. According to the order issued as a result of that hearing, Harper informed the court that he thought that "his family made a child support payment for him about the time of his incarceration." (Doc. 48-16 at 15). The court found no payment.
On July 23, 2014, the Plaintiff was seen by Debby Carter of CED Mental Health (the DeKalb County Mental Health Department) from 8:08 AM to 9:12 AM. Ms. Carter is a licensed professional counselor, and, as part of her position in 2014, she saw inmates at the Jail. She visited the Jail and provided assessments and counseling and could refer inmates to in-patient treatment. She vaguely remembered the Plaintiff.
Carter's notes reflect difficulty in obtaining background information from Harper. However, the Plaintiff was able to provide some correct background information, such as that he had previously worked for a security company, the number of his children, and his education level. Some information that he gave was incorrect, such as the number of his marriages. Carter's notes state that Harper was not sleeping well and was experiencing auditory hallucinations and paranoia because he believed that someone put pencil shavings in his cell and was watching him. Ms. Carter concluded that the Plaintiff was suffering from a psychosis, not otherwise specified, and planned to pursue in-patient hospital care for him.
On August 7, 2014, Ms. Carter spoke with Shane Healey at Gadsden Regional Medical Center who told her that "it sounded like" the Plaintiff "was in acute benzo withdrawal." (Doc. 48-23 at 2). Ms. Carter did not believe that the psychosis was caused by drug withdrawal at that point. She did not rule out a medical cause to the Plaintiff's psychosis, which is why she sought in-patient hospitalization at Gadsden Regional Medical Center. She conferred with Lt. Langley regarding the Plaintiff's history, care, and treatment.
Later in the day on July 23, 2014, the Plaintiff had another episode of non-responsiveness that Lt. Langley assessed in a note as a "recurrent episode of AMS." Harper had been alert an hour before this note. The Plaintiff's vitals were taken. The plan was to keep the Plaintiff in booking and to monitor him. This note was reviewed by Dr. Theakston.
At 10:36 p.m. a note is made by John Smith regarding an evaluation and well-being check made on the Plaintiff by Dr. Theakston. Smith believed that the Plaintiff was lucid and kempt during the well-being check and that his answers and statements were appropriate. Dr. Theakston testified that the Plaintiff "seemed very slow to respond to questioning. At times, some of his answers were nonsensical. At times, he would not answer at all." (Doc. 48-3 at 5(14)). It is undisputed that on that date Dr. Theakston noted that the Plaintiff had begun experiencing altered mental status a few days after being removed from Xanax and Methodone. (Doc. 47 at 17, ¶46; Plaintiff does not dispute). Dr. Theakston ordered that the Plaintiff be placed on.5 mg of Risperidone, which is a mild anti-psychotic which would help the Plaintiff sleep. He also ordered that the Plaintiff be allowed one hour outside each day and that he be allowed to shower daily. (Doc. 48-17 at 27). Dr. Theakston ordered the treatment because he believed that the Plaintiff's circadian clock needed to be regulated. Regarding his impressions at this time, Dr. Theakston testified:
(Doc. 48-3 at 11(37)). However, he admitted that ruling out the medical causes for his psychosis and related symptoms on July 23rd would perhaps have been better accomplished in a hospital setting. (Doc. 48-3 at 14(52)).
On July 28, 2014, the Plaintiff was seen and treated for foot pain/infection. He was prescribed antibiotics. The note reflects that the Plaintiff's vitals were taken and that he was still on the Risperidone, but that its dosage could be increased to 1 mg. The Plaintiff was able to describe his complaint. Lt. Langley discussed with the Plaintiff the importance in complying with the treatment regimen, since Harper would occasionally refuse to take his medication.
On July 30, 2014, Harper was seen by Carter and taken off of suicide watch. That same day, the Plaintiff was taken to DeKalb County Mental Health and was evaluated by its medical director, Dr. Richard Grant, who is a psychiatrist. Dr. Grant diagnosed the Plaintiff as having a psychosis, not otherwise specified, and prescribed 20 mg Zyprexa, which is an antipsychotic/mood stabilizer medication.
Lt. Langley observed that the Plaintiff's altered mental status would come and go. Lt. Langley's opinion at the time, and still today, is that the Plaintiff's issues were mental health related and not from drug withdrawal. (Doc. 48-1 at 35(136)).
On August 2, 2014, Harper got into an altercation with officers after he would not stop hitting a door and yelling profanity. Lt. Martin signed off on the report of this incident. On August 4, 2014, Harper got into an altercation with officers after he would not stop beating his head against a wall. He was treated by Lt. Langley. After showering and being placed back in the cell, Harper continued beating his head against the wall. Lt. Martin was informed and signed off on the report of this incident.
On August 5, 2014, the Plaintiff was seen again by Carter. The Plaintiff stated that he was hearing voices but did not know what they were saying. He was picking at things on his clothing. The Jail staff told Carter that the Plaintiff had been acting like "a log truck." She was also informed that when he is out of the cell and outside he acts "OK." At the interview the Plaintiff was oriented to time, place, and person and had normal appearance and affect.
On August 7, 2014, the Plaintiff was evaluated again by Lt. Langley. The Plaintiff became lightheaded when he was taken outside. Lt. Langley noted that the Plaintiff was unsteady and making motions like he was eating something. His vitals were taken, which showed that the Plaintiff weighed 191 pounds. The Plaintiff was given water and an Ensure. He quickly consumed them, requested more, and was given more and lunch. Lt. Langley requested another mental health evaluation on the Plaintiff.
On August 7, 2014, Carter spoke with Lt. Langley who expressed to Carter his concern that the Plaintiff was getting worse as he was experiencing weight loss and dehydration. Lt. Langley wanted to pursue inpatient treatment. Carter testified that, on that same day, Lt. Langley also expressed to her his concerns about Harper and said, "If we don't get him out of here, he is going to die." (Doc. 48-13 at 15(53)).
On August 7, 2014, after his bond was lowered and paid, the Plaintiff was released from the Jail to his wife, mother, and stepfather. Upon his release, the Plaintiff immediately resumed taking Xanax and Methadone.
Dr. Theakston admits that the reason that patients are weaned off of benzodiazepines and opiates is to minimize potential complications which can be connected with withdrawal. (Doc. 48-4 at 4(12)-5(13)). He concedes that severe drug withdrawal generally needs to be treated in a hospital. He agrees that when Harper was in the Jail he was at risk for severe withdrawal because he was withdrawing from three drugs and not just one, because of his history of seizures, because of the length of time he had been taking Xanax, and because he was taking a higher dose of Xanax. Dr. Theakston further concedes that "[a]ll patients with an altered mental status should be admitted into the hospital." (Doc. 48-3 at 10(36)).
Dr. Theakston concedes that in his work as an ER doctor he would hospitalize a person like Harper:
(Doc. 48-3 at 21(79)).
(Doc. 48-3 at 20(75-76)). However, Dr. Theakston says his treatment of Harper was limited by Sheriff Harris's no-narcotic policy:
(Doc. 48-3 at 19(70-71)). He interpreted the Jail's policy to not allow for weaning someone off narcotic medications and benzodiazepines (doc. 48-4 at 6(17)), and he knew that there are consequences to that interpretation (doc. 48-4 at 6(17), explaining:
(Doc. 48-4 at 5(15)). Dr. Theakston did not implement any protocols.
There is no evidence that Dr. Theakston ever performed a physical exam on the Plaintiff, and Dr. Theakston could not recall if he did one. (Doc. 48-4 at 25(94-95)). Dr. Theakston only saw the Plaintiff face to face once. (Doc. 48-4 at 25(95-96)). Dr. Theakston agreed that if Harper had benzodiazepine psychosis sound or light could exacerbate it. (Doc. 48-4 at 28(107)).
While Dr. Theakston claims he believed Harper might be having a mental issue, he concedes that a medical cause (i.e., benzodiazepine withdrawal psychosis) was clearly part of the picture and needed to be ruled out first, which, because Harper was not sent to the hospital for this purpose, was never done.
Harper's wife states that after Harper left the Jail he was not only in a psychosis, he was also emaciated, pale, sickly, covered in bruises and sores, and so weak and sick he could not walk on his own. Harper had lost at least 24 pounds, over 10 percent of body weight, during his incarceration.
On August 9, 2014, the Plaintiff was admitted to Gadsden Regional Medical Center. Upon admittance, the Plaintiff tested positive for Xanax and Methadone. The Plaintiff was tested for dysphagia. The test noted no difficulty in swallowing and noted that no intervention was required.
On August 11, 2014, while in the hospital, the Plaintiff was seen by Dr. Adam Pruett, a psychiatrist. The note reflects that when Dr. Pruett told the Plaintiff that he did not want to continue giving him Xanax because of the other medications that he was on, the Plaintiff stated that he wanted to go home and that he did not want to engage in care with him. The Plaintiff has not sought psychiatric treatment following his release from the Jail.
The Plaintiff's expert, Dr. Homer Venters, opined as follows:
(Doc. 48-30 at 7).
(Doc. 48-30 at 8).
(Doc. 48-30 at 9).
(Doc. 48-30 at 9). Dr. Venters explained that Harper's non-responsiveness on July 23 "provided dramatic evidence that he required a higher level of care."(Doc. 48-30 at 11). According to Dr. Venters, the Defendants' actions constitute a "gross variation from the most basic elements of correctional health." He states:
(Doc. 48-30 at 11). He states that
(Doc. 48-30 at 11).
Harper's wife called the Jail multiple times a day regarding her husband. She primarily spoke to Lt. Langley.
According to Stewart, when Lt. Langley first told her Harper was not in good shape it was roughly one-and-a-half weeks into his incarceration, which would be around July 23, the date Harper was non-responsive for an hour. They specifically discussed that Harper was not eating well. The following exchange took place during Stewart's deposition:
(Doc. 48-13 at 30(116)-31(117)). The deposition continues:
(Doc. 48-13 at 32(123)). They specifically discussed drug withdrawal and Harper's need for medical treatment outside the Jail but never discussed getting him admitted for psychiatric treatment. The day before Harper was released, Lt. Langley told her, "If we don't get Joey out of here, he's going to die." (Doc. 48-13 at 32(122)).
Except for the suicide logs, there is no documentation of any regular monitoring of Harper by Lt. Langley or other medical staff. However, Lt. Langley says he checked on Harper every day. Lt. Langley says he was aware that from July 15 until August 7, Harper was experiencing hallucinations and was agitated, not eating much, and not drinking much. Lt. Langley admits that he was the primary person overseeing Harper's care, and that he was aware that seizures are associated with benzodiazepine withdrawal. Still, Lt. Langley chose not to send Harper to the hospital after his possible seizure on July 16. According to Lt. Langley, in addition to the documented seizure on July 16, the probable seizure that caused the fall and head injury at midnight that same night, and the documented non-responsiveness on July 23, Harper experienced other periods of nonresponsiveness that were not documented. It is undisputed that Harper's repeated instances of non-responsiveness are classic postictal behavior that shows Harper continued to have withdrawal seizures. (Doc. 51 at 23, ¶74; doc. 53 (no dispute)).
By July 28, Harper had a foot infection. By August 2, Harper had even become combative. Lt. Langley recognized that Harper was being subjected to 24/7 lighting, which may have been an aggravating factor regarding Harper's condition. Even though Harper got worse and continued to experience seizures and was otherwise deteriorating, Lt. Langley did not send Harper to the hospital for evaluation.
Dr. Theakston never told Lt. Langley that he believed Harper's condition was not medical.
Lt. Langley started pushing to have Harper's condition treated as having a mental problem. He contacted Carter, who testified that Gadsden Regional Hospital felt that the Plaintiff's psychosis developed as a result of benzodiazepine withdrawal. (Doc. 48-10 at 6(17)). The following exchange took place in Carter's deposition:
(Doc. 48-10 at 6(17-18)). Later in her deposition, Carter was asked is she knew "that he had been a long-term methadone and Xanax and Soma user," to which she replied: "I don't think I knew that until I finally spoke with his mother . . . and got more information . . . on August the 7th of 2014." (Doc. 48-10 at 6(19)). Carter could not recall whether she knew that the Plaintiff had had a seizure or something which appeared to be a seizure. (Doc. 48-10 at 10(35)). According to Carter, the premise of her involvement was that the Jail medical personnel had determined there was not a medical issue.
It is undisputed that by getting Harper in a psychiatric bed, the county would have avoided the cost of Harper's hospitalization. (Doc. 51 at 25, ¶87; doc. 53(no dipute)). Ultimately, Harper was denied a psychiatric bed. Carter testified that she "didn't document anything as to why," but her thought "would have been because they thought it was the withdrawal, but I don't know if they actually ever said that to me at that point or not. That's just what [the hospital representative] had said originally." (Doc. 48-10 at 13(47)). Lt. Langley testified that a psychiatric bad was found for the Plaintiff shortly before he left the Jail, and they "were waiting on a transport order to take him to [that] facility," although he did not know the facility. (Doc. 48-1 at 35(133)).
Lt. Martin was over the Jail at the time of Harper's incarceration and had an office at the front of the Jail so that he is "right there to be notified about anything that goes on in the jail." (Doc. 48-9 at 3(8)). Lt. Martin did not have direct contact with the Plaintiff during his incarceration, but concedes that he would have been informed regarding an inmate like Harper with ongoing medical issues. Martin concedes he received reports from altercations involving Harper, including one in which Harper was banging his head. As a layperson, Lt. Martin agrees that a person who is banging their head needs a higher level of care. As a layperson, Lt. Martin agrees that a seizure should be treated as an emergency.
Stewart specifically recalls speaking with Lt. Martin about her concerns for Harper's well being. The following exchange took place in her deposition:
(Doc. 48-13 at 25(94)-26(97)). Lt. Langley says Lt. Martin was aware of Harper's condition and given daily updates.
Sheriff Harris's office is in the Jail as well, and he would be aware of significant issues regarding inmates. Sheriff Harris did not have direct contact with the Plaintiff during his incarceration and had no knowledge of any physical or mental issues that he was experiencing.
The Plaintiff agrees to the dismissal of Defendants Black, Smith, and Hulgan. (Doc. 51 at 7). Accordingly, summary judgment will be granted to each of them on both counts of the Complaint.
The Defendants have moved for summary judgment on Count Two. (Doc. 47 at 34). The Plaintiff failed to respond to that argument in his brief. It has been noted that
Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (internal citations omitted). The Court deems Count Two to be abandoned.
Furthermore, Count Two alleges a violation of Title II of the ADA which applies only to "public entities." 42 U.S.C.A. § 12132; Owens v. Sec'y, Fla. Dep't of Corr., 602 F. App'x 475, 477 (11th Cir. 2015) ("`Only public entities are liable for violations of Title II of the ADA.'") (quoting Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir.2010)). Claims against public officials in their individual capacities are not cognizable under Title II of the ADA. See Owens, 602 F. App'x at 478 ("Owens fails to state ADA claims against Crews, Bateman, Sheffield, and Lawrence in their individual capacities."). Summary Judgment will be awarded to all of the Defendants, and against the Plaintiff, on Count Two.
Count One is the only count remaining. In this count the Plaintiff claims that the Defendants violated his constitutional rights when they "were deliberately indifferent to Harper's serious medical needs." (Doc. 1 at 9, ¶55).
The Defendants argue that they are entitled to qualified immunity as to the deliberate indifference claims in Count One. Very recently, the Eleventh Circuit explained:
Gates v. Khokhar, 884 F.3d 1290, 1296-97 (11th Cir. 2018), cert. denied, No. 18-511, 2019 WL 113142 (U.S. Jan. 7, 2019).
"An official acts within his discretionary authority if his actions (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority." Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir. 2017) (internal quotation marks omitted). The Plaintiff does not dispute that each of the Defendants was acting within the scope of his discretionary authority at all times. Furthermore, it is clear that each was doing so either by setting policies for the Jail, providing direct medical care to the Plaintiff, or supervising others in their care of the Plaintiff. See Nam Dang, 871 F.3d at 1279 (health care providers acted within the course and scope of their discretionary authority in providing care to inmate); Shaw v. Coosa Cty. Comm'n, 434 F.Supp.2d 1179, 1190 (M.D. Ala. 2005) (Fuller, J.) (setting policies and procedures regarding medical screening for jail inmate, medical treatment for jail inmates, training for jail staff, and other policies relating to the jail administration were discretionary functions of Sheriff). The Plaintiff makes no argument to the contrary.
The burden now shifts to the Plaintiff to show that qualified immunity is not appropriate for the Defendants because (1) the facts alleged make out a violation of a constitutional right and (2) the constitutional right at issue was clearly established at the time of the alleged misconduct.
"Because the Eighth Amendment
Barcelona, 2018 WL 4502197, at *2.
A "serious medical need" is "`one that is diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would recognize the need for medical treatment.'" Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (quoting Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008)). "`In the alternative, a serious medical need is determined by whether a delay in treating the need worsens the condition.'" Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1096 (11th Cir. 2014) (quoting Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009)).
In the Complaint, the Plaintiff identifies the following "serious medical needs": drug withdrawal, withdrawal symptoms, life-threatening seizures, lack of calorie intake, dehydration, and psychosis. (Doc. 1 at 9, ¶55). The Plaintiff's brief argues only that the Plaintiff's
Based on the allegations in the Complaint and the Plaintiff's response brief, along with the fact that the Defendants do not directly attack the other alleged serious medical needs set out in the Complaint, the Court holds that, for the purposes of the instant Motion, the Plaintiff was suffering from the serious medical need of drug withdrawal, which manifested itself through altered mental status, seizures, lack of calorie intake, dehydration, extreme sleep deprivation, self harm/head banging, and general physical deterioration.
A defendant may be liable for a constitutional violation only when he or she "personally participates" in the alleged constitutional violation or when there is a "causal connection between actions of the supervising official and the alleged constitutional deprivation." Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008). In the instant case the Plaintiff alleges both. The Court will address each in turn.
Deliberate indifference, has three components: "`(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.'" Hunt v. Warden, 748 F. App'x 894, 899 (11th Cir. 2018) (quoting Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (internal quotation marks omitted)); Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017).
"Subjective knowledge of the risk requires that the defendant 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." Johnson v. Bessemer, Alabama, City of, 741 F. App'x 694, 700 (11th Cir. 2018) (quoting Nam Dang, 871 F.3d at 1280 (internal quotation marks omitted in original)). "`[I]mputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference. Each individual defendant must be judged separately and on the basis of what that person kn[ew].'" Nam Dang, 871 F.3d at 1280 (quoting Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (citations omitted)). "Whether a particular defendant has subjective knowledge of the risk of serious harm is a question of fact `subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.'" Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir. 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994) (citation omitted)).
The Eleventh Circuit has written:
Nam Dang, 871 F.3d at 1280 (emphasis added).
The Defendants make
Things get confusing when the Plaintiff's response brief is considered. Despite the Defendants' failure to challenge the subjective knowledge prong of the test, the
The initial question the Court must answer is whether the "subjective knowledge" issue is properly before it on summary judgment. Certainly "[a]rguments raised for the first time in a reply brief are not properly before a reviewing court." Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (internal quotations and citations omitted); Essex Ins. Co. v. Foley, 827 F.Supp.2d 1326, 1330 (S.D. Ala. 2011) (Steele, J.) (issue "not properly raised" when raised for the first time in a reply brief to a motion for summary judgment). However, the subjective knowledge issue can be considered when it was first raised by the
Regardless, the Court still determines that summary judgment is due to be denied Dr. Theakston on this issue. First, and as noted previously in this opinion, for issues in which the Defendants do not bear the burden of proof at trial, such as the subjective knowledge issue, they can meet their burden on a summary judgment either by showing that there is a lack of evidence to support this issue or by providing affirmative evidence which demonstrates that the Plaintiff cannot prove this issue at trial. (See supra section II; Fitzpatrick, 2 F. 3d at 1116-1117). Although it is unclear which approach the Defendants are taking, their arguments fail under either approach. The Defendants do not
(Doc. 51 at 39-40). The Defendants have not satisfied their burden.
Furthermore, a reasonable jury could find that Dr. Theakston's knowledge of the drugs the Plaintiff was taking and the possible symptoms of withdrawal from same, along with the evidence of the symptoms he actually had, made it obvious that the Plaintiff was experiencing severe drug withdrawal. This is true especially after the Plaintiff began having seizures, which Dr. Theakston admitted in his deposition "indicate at least a moderate level of withdrawal." (Doc. 48-3 at 20(75-76)). Summary Judgment will be denied to the Dr. Theakston on the issue of whether he had subjective knowledge of the Plaintiff's drug withdrawal while the Plaintiff was at the Jail.
Lt. Langley's knowledge is another issue however. It is undisputed that Lt. Langley's opinion at the time, and still today, is that the Plaintiff's issues were mental health related and not from drug withdrawal. (Doc. 48-1 at 35(136)). Because he lacked subjective knowledge that the Plaintiff was experiencing severe drug withdrawal symptoms, he could not have deliberately disregarded those symptoms. Accordingly, Langley committed no constitutional violation and is entitled to qualified immunity. Summary judgment will be granted to Langley and against the Plaintiff as to Count One.
The Plaintiff argues that Dr. Theakston and Lt. Langley were deliberately indifferent when they decided "to manage persons experiencing benzodiazepine withdrawal seizures in the jail with anti-seizure medication and observation by jailers, who were not medically trained." (Doc. 51 at 38). This level of drug withdrawal, the Plaintiff argues, "when associated with benzodiazepines dependence, is dangerous and cannot be safely managed in a jail due to the risk of death." (Doc. 51 at 39).
"The question of whether additional diagnostic techniques or alternate forms of treatment should be employed constitutes `a classic example of a matter for medical judgment'" and does not support an Eighth [or Fourteenth] Amendment claim." Clas v. Torres, 549 F. App'x 922, 923 (11th Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 293, 50 L. Ed. 2d 251 (1976)). "Moreover, `[w]here a prisoner has received . . . medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in tort law.'" Boone v. Gaxiola, 665 F. App'x 772, 774 (11th Cir. 2016) (quoting Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (internal quotation omitted)). To show "grossly inadequate treatment" in cases where medical judgments are involved, "`a plaintiff may need to do more than refer to prior cases . . . [and instead] produce opinions of medical experts which assert that the official's actions were so grossly contrary to accepted medical practices as to amount to deliberate indifference.'" Davis v. Madison Cty., Alabama, No. 5:16-CV-01166-AKK, 2018 WL 3631707, at *6 (N.D. Ala. July 31, 2018) (Kallon, J.) (quoting Howell v. Evans, 922 F.2d 712, 720 (11th Cir. 1991)).
In the instant case, in addition to the national standards set out in section III.A. herein, the Plaintiff has produced the expert report of Dr. Homer Venters, who opines that the Plaintiff had been prescribed a "significant dose" of Xanax "and his documented longstanding use of this medication makes it virtually certain that he would experience the physical effects of benzodiazepine withdrawal in jail without treatment." (Doc. 48-30 at 6). He states that the health staff at the jail "repeatedly dismissed their own records during subsequent physician review of the clearly marked seizure history and active benzodiazepine use." (Doc. 48-30 at 6). He notes the standard of care in correctional medicine is
(Doc. 48-30 at 7). He states that the "precipitous withdrawal from [the Plaintiff's] longstanding and documented community treatment with benzodiazepines" caused the Plaintiff to experience "a series of seizures and other potentially fatal complications." (Doc. 48-30 at 10). He continues:
(Doc. 48-30 at 9).
(Doc. 48-30 at 8).
Dr. Theakston agrees that because the Plaintiff was withdrawing from three drugs, had a history of seizures, and had been taking a higher dose of Xanax for so long, he was at risk for severe drug withdrawal, and that his seizures were evidence of same. But Dr. Theakston interpreted the Jail's Policy to require cold turkey withdrawal. The following exchange took place in his deposition:
(Doc. 48-4 at 6(17)). Dr. Theakston also agreed that a person experiencing seizures as a result of drug withdrawal should have been treated at a hospital.
A reasonable jury could find that this it was more than mere negligence which led to Dr. Theakston to not send the Plaintiff to the hospital once the seizures began, and possibly before. There is substantial evidence that Dr. Theakston, knowing full well that the Plaintiff was experiencing severe drug withdrawal symptoms, including seizures, and knowing that due to the Policy
As to Lt. Langley on the other hand, the Plaintiff has cited no evidence that Lt. Langley, who is a nurse, not a doctor, could have done anything differently once Dr. Theakston ordered a plan of treatment for the Plaintiff. Accordingly, even if there were evidence that Lt. Langley was aware that the Plaintiff was experiencing severe drug withdrawal, there is no evidence that Lt. Langley disregarded that risk. For this reason as well, summary judgment will be granted to Lt. Langley as to Count One.
The Defendants argue that "there is no evidence whatsoever that Sheriff Harris possessed any subjective knowledge." (Doc. 47 at 31). The Plaintiff argues that "Sheriff Harris [was] informed regarding Harper's condition." (Doc. 51 at 41) (citing doc. 51 at 26, ¶¶92-99). The only evidence cited by the Plaintiff in support of this proposition is the following exchange from Martin's deposition:
(Doc. 48-9 at 15(54)). In no way does this evidence establish that Harris was
Furthermore, "[s]upervisory officials are entitled to rely on medical judgments made by medical professionals responsible for prisoner care." Williams v. Limestone Cty., Ala., 198 F. App'x 893, 897 (11th Cir. 2006) (citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.1993); White v. Farrier, 849 F.2d 322, 327 (8th Cir.1988)). "Prison officials are not under a duty to directly supervise medical personnel or to intervene in treatment decisions where they have no actual knowledge that intervention is necessary to prevent a constitutional deprivation." Kelly v. Ambroski, 97 F.Supp.3d 1320, 1343 (N.D. Ala. 2015) (Haikala, J.) (citing See Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir.2004); Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir.1996); Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir.1977)).
There is no evidence that Sheriff Harris personally participated in a denial of the Plaintiff's constitutional rights. Accordingly, there was no constitutional violation and the Sheriff is entitled to qualified immunity. Summary judgment will be granted to Sheriff Harris as to the personal participation claim against him in Count One.
Despite Martin's knowledge that the Plaintiff was experiencing certain issues, there is no evidence in the record that he
The Plaintiff alleges that it was Sheriff Harris's adoption of the no narcotics policy itself which constituted deliberate indifference.
The Plaintiff argues, incorrectly, that qualified immunity is unavailable to Defendants who are "guilty of deliberate indifference." (Doc. 51 at 42). "Whether or not [a] Defendant's conduct constituted deliberate indifference," the Plaintiff must still show that "the law applicable to these circumstances" was clearly established at the time. Youmans v. Gagnon, 626 F.3d 557, 562-63 (11th Cir. 2010).
D.C. v. Wesby, 138 S.Ct. 577, 589-90, 199 L. Ed. 2d 453 (2018). The Eleventh Circuit has held that "constitutional provisions, federal statutes, and judicial decisions of the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the relevant state are all capable of clearly establishing the law." Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1200 (11th Cir. 2007).
The Defendants argue that "[t]here is no clearly established law dictating an exact protocol for the treatment of those victims of America's substance abuse epidemic who end up incarcerated in our jails and prisons." (Doc. 47 at 22). However, there is clearly established law that the withdrawal of
For the foregoing reasons, summary judgment is
(Doc. 52-4 at 3). "Detoxification is done only under physician supervision in accordance with local, state, and federal laws." (Doc. 52-4 at 2). "Inmates experiencing severe, life-threatening intoxication (overdose) or withdrawal are transferred immediately to a licensed acute care facility." (Doc. 52-4 at 3).
(Doc. 52-4 at 4).
(Doc. 52-2 at 14).
(Doc. 48-14 at 13).
Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
(Doc. 53 at 6, n.4) (underlining added). This is all the Defendants have to say about this issue in their reply.
(Doc. 47 at 30). There are a number of problems with this argument. First, the Defendants do not attack, through a Motion to Strike or otherwise, the qualifications of Dr. Venters, or the admissibility of his report. Their admissibility argument, in short, is insufficiently developed. Second, the Defendants' argument does not address Dr. Venters's opinions identified by the Court in this section.
(Doc. 47 at 30) (citing doc. 48-29 at 11). Again, these opinions all address only how the Defendants reacted after the first hospital visit, and do not address the opinion set out above. No other opinions of Dr. Jones have been cited.
The Defendants note vaguely in their reply brief that the Plaintiff "has wholly ignored the expert report submitted by Dr. Jones as well as any of the deficiencies identified in Dr. Venters's report." (Doc. 53 at 7). They also argue, without citation, that there is "conflicting expert testimony." (Doc. 53 at 8). The Court declines this invitation to review the entire report of Dr. Jones and determine for the Defendants which parts of it arguably help their case. "The court need consider only the cited materials." Fed. R. Civ. P. 56(c)(3). "[A]ppellate judges are not like pigs, hunting for truffles buried in briefs. Likewise, district court judges are not required to ferret out delectable facts. . . ." Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (internal quotations and citation omitted).
(Doc. 48-3 at 21(79)).
(Doc. 53 at 6, n. 4). The Court does not agree in light of the fact that
(Doc. 51 at 38). As noted by the Plaintiff, it was Sheriff Harris's policy alone. Martin, Theakston, and Langley can only be liable to the extent that they each personally participated in the alleged constitutional violation.