Christie v. State of Washington Department of Corrections

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 TRINA CHRISTIE, in her personal capacity Case No. 3:22-cv-05692-TMC 8 and as representative of the Estate of Anthony Christie; C.C., a minor in his personal ORDER ON DEFENDANTS’ MOTION 9 capacity, FOR SUMMARY JUDGMENT Plaintiffs, 10 v. 11 STATE OF WASHINGTON 12 DEPARTMENT OF CORRECTIONS, et al., 13 Defendants. 14 15 I. INTRODUCTION 16 Anthony Christie died by suicide in September 2019 while in detention at Monroe 17 Corrections Complex (MCC) for an alleged violation of his community custody sentence. That 18 detention was his sixth in 2019. During each previous detention that year, he disclosed that he 19 had experienced suicidal thoughts or previously attempted suicide. In response, MCC staff 20 typically placed him on suicide watch, referred him for further evaluation, or took other suicide 21 prevention measures. During his final detention, however, Anthony1 did not disclose any past or 22 present suicidality. And this time, MCC did not implement any suicide prevention measures. 23 1 The Court refers to Anthony Christie and Trina Christie by their first names to avoid confusion. 24 The Court means no disrespect. 1 Instead, they placed Anthony in general housing, where staff only checked on inmates hourly. 2 On September 21, 2019, two officers were performing a formal count when they found Anthony 3 lying face down in his cell. When he did not respond to their attempts to wake him, they called 4 for assistance. When the officers opened the cell door and approached Anthony, they discovered 5 a ligature around his neck, and blood and vomit on his face. Attempts to revive him were 6 unsuccessful. 7 Anthony’s mother, Trina Christie, and his son, C.C., bring this action on behalf of 8 themselves and Anthony’s estate against the State of Washington Department of Corrections 9 (DOC) and DOC staff members and contractors. They argue that given extensive documentation 10 of Anthony’s suicidal history, DOC and the individual defendants either knew or should have 11 known Anthony was at risk of attempting suicide, even if he did not disclose suicidal ideation 12 during his final detention. They claim that failure to take precautions amounts to negligence in 13 violation of Washington state law and deliberate indifference to Anthony’s clearly established 14 Fourteenth Amendment right to medical treatment, including suicide prevention. 15 Defendants Kody Angell, Troy Bushey, Mary Jo Currey, Elaine Gravatt, William Hall, 16 Christopher Hallgren, Valarie Herrington, Rob Herzog, Julie Martin, Jacob Miller, Dianna Mull, 17 Jack Warner, State of Washington Department of Corrections, and John Does 1-10 move to 18 dismiss these claims on summary judgment (Dkt. 68). For the following reasons, the Court 19 GRANTS the motion in part and DENIES it in part. 20 II. BACKGROUND 21 A. Factual Background After pleading guilty to violating the Uniform Controlled Substances Act, Anthony was 22 sentenced to twenty days in custody and twelve months of community custody with the 23 Washington State Department of Corrections (DOC). Dkt. 71-1. On February 21, 2018, he was 24 1 released from confinement and began serving his community custody supervision. Dkt. 71-2 at 2 38. Miller was assigned as his community corrections officer (CCO) in May 2018. Id. at 32. The 3 following discussion of the events leading to Anthony’s death is based on the record submitted 4 by the parties, viewing the facts and drawing all reasonable inferences in favor of the non- 5 moving party, as required on summary judgment. 6 1. Policies and procedures for community custody violations 7 When someone on DOC community custody fails to report to a CCO as required, the 8 CCO requests a Secretary’s Warrant, which authorizes law enforcement to arrest the individual. 9 See id. at 30–31. When someone is arrested for failing to report or otherwise violating their DOC 10 community custody requirements in Whatcom County, the arresting CCO brings the individual 11 to the Whatcom County Jail (WCJ). Dkt. 71-6 at 7–8; see Dkt. 71-17. Typically, the Whatcom 12 County Sheriff’s Office (WCSO)2 then transports the individual to the Violator Unit (VU) at the 13 MCC Intensive Management Unit (IMU). Dkt. 71-6 at 7–8. But when the individual has medical 14 or mental health issues, the CCO contacts the nurse’s desk at DOC headquarters and brings the 15 individual to a local hospital for a “fit-for-jail” medical and mental health evaluation. Dkt. 70-1 16 at 24–25; Dkt. 71-18 at 6–7; Dkt. 78-5 at 5–7. An individual who does not receive clearance 17 based on the evaluation remains at the local hospital until the hospital’s medical and mental 18 health providers clear them. Dkt. 71-18 at 6. When the providers grant clearance, they also 19 decide whether to place the individual in a general population pod (G-Pod), the medical pod (M- 20 Pod), or an inpatient unit for medical observation and treatment, as well as whether to place the 21 individual in the unit or in a closed observation area. Id. Individuals who report experiencing 22 23 2 DOC later changed its policy such that a CCO would transport the individual from WCJ to the 24 VU. 1 thoughts of self-harm or suicide may have restricted access to sharp objects and certain clothing. 2 Id. at 6–7. 3 “[W]hen a violator is sent out to the Department of Corrections . . . [the] medical and/or 4 mental health paperwork typically go[es] with the inmate.” See Dkt. 77 at 5 (citing Dkt. 71-6 at 5 9). Regardless of whether a person receives a hospital evaluation of their fitness for jail, DOC 6 policy requires assessing each detainee upon arrival at a DOC facility through initial health and 7 mental health screenings. Dkt. 78-2 at 5. Health screenings must be conducted within 16 hours of 8 arrival; mental health screenings must be conducted within one business day of arrival. Id. 9 Providers are to document the detainee’s mental health status on the “DOC 13-349 10 Intersystem/Restrictive Housing Mental Health Screening” and assign the detainee “PULHES” 11 codes. Id. at 5–6. DOC uses a coding system called “PULHES” to “assist in determining the best 12 placement for living and working for Incarcerated Individuals.” Dkt. 78-3 at 2. The system gives 13 an incarcerated person a set of numerical designations, or codes, corresponding to 12 different 14 factors, designated by letter. Id. The relevant factors here are “Mental Health Service 15 Utilization,” or “S,” and “Suicide Risk,” or “R.” Id. DOC policy provides that “[i]n facilities 16 with onsite mental health, screenings completed by a provider that does not specialize in mental 17 health will be reviewed by a mental health employee/contract staff the next business day.” 18 Dkt. 78-2 at 5. 19 DOC policy also requires creating a health record for all “offenders housed in [DOC] 20 facilities . . . to provide continuity of care.” Dkt. 71-15 at 3. The record must contain “[a]ll 21 medical, dental, and mental health information.” Id. It “serves as the single comprehensive 22 source of accurate chronological documentation of all health care services provided to an 23 offender in a [DOC] facility.” Id. Further, “[p]revious health records of offenders who are 24 readmitted will be incorporated into the new health record.” Id. 1 The VU does not, however, maintain comprehensive health records for all offenders. An 2 investigative report by the Office of Corrections Ombuds describes the record-keeping practices 3 at the VU as follows: 4 [M]edical records for the violator population are placed in “red folders” to distinguish them from blue binders which house records for the regular incarcerated 5 individuals. Each time an incarcerated individual arrives at the facility on a violation, a new red folder is generated; once the individual is released or 6 transferred, the red folder is placed into a drawer. If the same incarcerated individual returns to the facility on another violation, another new red folder is 7 generated; the DOC HQ staff reported that the records from prior stays are not incorporated into the new folder, so any information from prior stays is not carried 8 forward. 9 Dkt. 71-20 at 7. 10 The VU houses those detained and awaiting a hearing for an alleged community custody 11 violation or serving a sanction for such a violation. Dkt. 78-21 at 6. The VU contains one 12 hundred cells divided into six pods. Id.; Dkt. 70-1 at 97. Four of the pods are G-Pods. See 13 Dkt. 70-1 at 113. One is an L-Pod, or an administrative segregation pod for those who were not 14 following VU rules, and one is the M-Pod, which houses violators with high medical or mental 15 health needs. Id. at 47, 112–13; Dkt. 71-18 at 6. Radu Muresan, a VU correctional officer, 16 explained that: 17 M pod would be like a more heightened watch pod. That’s going to be normally your guys that are coming in detoxing or have mental health issues like somebody 18 seeing – seeing things or hearing things, they’ll normally go to our M pod. And they’re supposed to be monitored more often than somebody who’s on general 19 population pods. 20 Id. at 109. 21 Officers periodically conduct safety checks of each cell in the VU. For “tier checks,” the 22 officer quickly looks in each cell window to check “for obvious signs of life” to ensure the 23 inmate is “okay and []alive.” Id. at 113. Officers conduct tier checks of G-Pods and L-Pod every 24 hour, but officers conduct tier checks of M-Pod every thirty minutes. Id. at 98. The staff 1 performs tier checks in a “staggered and random pattern” so that “they’re not conducted [at the] 2 same time” each check. Id. at 100. Officers also conduct a “formal standing count” twice per 3 eight-hour shift. Id. at 114. For formal standing counts, each inmate must stand and give a verbal 4 response. Id. at 113. 5 2. Trina Christie’s calls 6 Trina frequently called Miller, Anthony’s CCO, to express her concerns about Anthony’s 7 mental health, including his suicidality. Dkt. 78-33 at 6; see Dkt. 71-2. She testified that she 8 called Miller because she thought of him as “a partner to help guide” Anthony “out of a life of 9 crime and drugs” and help him “get into a better place.” Dkt. 78-33 at 6. On May 14, 2018, she 10 left Miller a message telling him that Anthony “may benefit from mental health treatment,” and 11 explaining that Anthony was “assaulted in the head approx[imately] 6 months ago and [that] she 12 thinks he might have cognitive issues and maybe a TBI.” Dkt. 71-2 at 31. She testified that the 13 last few times she called Miller, she “[a]bsolutely” told him she was concerned about Anthony’s 14 suicidality. Dkt. 78-33 at 7–8. 15 3. Documentation of Anthony’s suicidality during his community custody sentence Anthony was arrested and detained six times in 2019 for failing to report as required and 16 other violations of his conditions of custody. See Dkt. 71-2. In each of the first five instances, his 17 intake assessment or subsequent mental health evaluation documented his suicidality. 18 On January 22, 2019, he was arrested and brought first to the WCJ. Dkt. 71-2 at 19. His 19 WCJ intake form states that he had suicidal thoughts about jumping in a river within the last six 20 months, but that he had not developed a plan or acted on these thoughts; the form also states that 21 he had attempted suicide seven years before, but not within the last six months. Dkt. 71-4 at 2. 22 WCSO flagged him as suicidal and gave him a risk classification score of two out of five, which 23 corresponds to WCJ housing placement on “[c]lose watch on the first floor.” Id.; Dkt. 71-5 at 2. 24 1 On February 28, 2019, Anthony was arrested for violating his conditions of custody. 2 Dkt. 71-2 at 34. Anthony’s WCJ intake form says he had suicidal thoughts about an hour before 3 booking, but neither acted on the thoughts nor developed a plan. Dkt. 71-7 at 3. The form also 4 indicates that Anthony had two black eyes from a punch to the face about one week before the 5 evaluation. Id. at 2. He was later transferred to MCC. See Dkt. 71-2 at 15. 6 On March 25, 2019, Miller arrested Anthony for failure to report. Dkt. 71-2 at 12 7 Anthony told him “he wanted to not be alive anymore” and that “he is suicidal all the time.” Id. 8 Miller contacted the DOC nurse’s desk, which directed him to bring Anthony to the hospital for 9 a fit-for-jail assessment. Id. At Saint Joseph Hospital, the physician noted that Anthony said “he 10 is hopeless as there [were] suicidal thoughts every day” but indicated that he “has no plan.” 11 Dkt. 71-8 at 6. On the fit-for-jail form, the physician specified that Anthony should be placed on 12 suicide watch. Id.; Dkt. 71-9 at 2. 13 On June 6, 2019, WCSO arrested Anthony for use of a controlled substance. Dkt. 71-2 at 14 8–9. DOC placed a hold on Anthony while he was in custody because his arrest was a violation 15 of his community custody conditions. Id. A form from a mental health evaluation on June 9 16 indicates that the evaluation was conducted because WCJ received information regarding 17 Anthony’s history of suicidal behavior, depression, and ADHD. Dkt. 71-10 at 2. The evaluation 18 included a suicide risk assessment, which indicated that he sometimes experienced suicidal 19 ideation, that he had a history of low lethality suicide attempts, and that he had no plan. Id. at 6. 20 It also evaluated other risk factors, including substance abuse, his support systems, and his 21 history of custody. Id. Despite the presence of suicidal thoughts and other risk factors, his 22 evaluation score corresponded to placement in “housing as needed” and was too low to yield 23 placement on the first floor with 15- or 30-minute safety checks. Id. 24 1 On August 6, 2019, Miller arrested Anthony for alleged misdemeanors and booked him 2 in WCJ. Dkt. 71-2 at 7. On his intake form at WCJ, Anthony reported having suicidal thoughts 3 and “sporadic” thoughts of self-harm. Dkt. 71-11 at 3. In his suicide assessment, he reported that 4 within the last six months, he had suicidal thoughts and “act[ed] on these thoughts . . . , or 5 develop[ed] a plan or self-harm[ed].” Dkt. 71-12 at 2. As a result, he received the highest 6 possible risk classification score, five out of five, indicating that he should be placed on suicide 7 watch. Id. 8 The following day, once he was transferred to MCC, Gravatt, a registered nurse, filled 9 out his mental health screening form. See Dkt. 78-16. She wrote that “6 months ago,” Anthony 10 “tried to hurt or kill [him]self” by “[h]eadbang/hang.”3 Id. at 2. She also noted that Anthony has 11 attempted “suicide by cop,” and that he was not thinking of hurting or killing himself at the time 12 of intake. Id. Next to the question “[d]o you feel you need mental health services now,” Gravatt 13 wrote “Mental health chart.”4 Id. On the “Primary Encounter Report,” presumably the “chart,” 14 Gravatt explained: “Violator has [history] of thoughts of self-harm–6 mon[th]s ago, was thinking 15 of hanging himself, Bang his head open to suicide. He did not actually do it but has long 16 thoughts . . . . Will have mental health [illegible] to see him.” Dkt. 78-17 at 2. Gravatt assigned 17 him to M-Pod. Id. There is no record of a follow-up “assessment by a mental health provider.” 18 Dkt. 71-20 at 7. 19 20 21 22 3 The handwriting on the form is difficult to read, but next to the follow up question “[h]ow many times?”, it appears to say “awhile thoughts” or “awful thoughts.” See Dkt. 78-16 at 2. It is 23 thus unclear whether this answer refers to attempts or thoughts of suicide. 24 4 The handwriting is unclear but appears to say “chart.” See Dkt. 78-16 at 2. 1 4. Anthony’s September 2019 detention and suicide 2 On September 19, 2019, Miller arrested Anthony for violating the terms of his 3 community custody. Dkt. 71-2 at 3. Anthony admitted to drinking and using methamphetamine 4 three days before the arrest. Id. Two other CCOs brought Anthony to WCJ and booked him 5 there. Id. Miller testified that Anthony did not disclose that he was suicidal during this arrest. 6 Dkt. 70-1 at 34. Anthony did not report to WCJ staff that he was suicidal, even when asked if he 7 had any suicidal ideation. Id. at 42. Miller did not convey his previous knowledge of Anthony’s 8 suicide risk to the jail or MCC. Dkt. 78-13 at 15. 9 WCSO transported Anthony to MCC, see Dkt. 71-6 at 7; Dkt. 71-18 at 3, where Bushey, 10 a registered nurse, and Herrington, a Licensed Mental Health Counselor (LMHC), performed 11 initial screenings on September 20, Dkt. 78-24; Dkt. 78-26. Anthony’s Intersystem/Restricted 12 Housing Mental Health Screening form states that he denied ever having “tried to hurt or kill 13 [him]self,” “receiv[ing] therapy or medication for a mental health concern and/or suicide 14 attempt,” or receiving a mental health diagnosis. Dkt. 78-24 at 2. He also denied feeling he 15 needed mental health services at that time. Id. He did, however, disclose that he used 16 methamphetamine daily and last used it four days before. Id. Based on this information, 17 Herrington marked that Anthony should be placed in general population housing and did not 18 mark him for referral for mental health appraisal. Id. Consistent with DOC’s practice for VU 19 detainees, Herrington did not obtain Anthony’s health records from previous detentions from the 20 archive file room. See Dkt. 78-25 at 10. 21 The next day, September 21, correctional officer Hall performed tier checks of Anthony’s 22 pod around 2:00 p.m. and 3:00 p.m. Dkt. 71-18 at 4. Video footage of each tier check shows Hall 23 briefly glance in a small window on Anthony’s cell door as he walked by without pausing. 24 1 Dkt. 22 at 14:17:32; Dkt. 23 at 15:13:40–42. Around 4:00 p.m.,5 Hall and another correctional 2 officer, Angell, performed a formal standing count, and found Anthony lying face-down on the 3 floor of his cell next to the bed, with his head and neck covered by the desk. Id.; Dkt. 71-18 at 4. 4 Hall and Angell attempted to get Anthony’s attention for a few minutes, but he remained 5 nonresponsive. Dkt. 71-18 at 4. Angell made an emergency radio call alerting VU staff that they 6 found a nonresponsive inmate during the count. Id. Two other correctional officers, Radu 7 Muresan and John Geisler, responded to the call. Id. at 5. They attempted to awaken Anthony by 8 knocking on the door with keys. Id. Sergeant Mull arrived and instructed the officers to open the 9 cell door to check on him. Id. 10 When they approached Anthony, they saw a ligature around his neck, as well as blood 11 and vomit on his face. Id. Geisler noticed Anthony’s leg was cold to the touch. Id. They untied 12 the ligature and performed CPR until they were relieved by Emergency Medical Services. Id. 13 Efforts to revive Anthony lasted for 33 minutes before a time of death was announced at 4:30 14 p.m. Id. at 2. Plaintiffs’ expert witness, Dr. Kris Sperry, opined “to a reasonable degree of 15 medical certainty, that Anthony Christie had been dead for a period of several hours when his 16 body was discovered.” Dkt. 78-43 at 7. 17 B. Procedural History 18 Anthony’s mother, Trina, and his son, C.C., filed this case in King County Superior 19 Court. See Dkt. 1-1. On September 16, 2022, it was removed to the U.S. District Court for the 20 Western District of Washington. Dkt. 1, 9. Plaintiffs filed an amended complaint on April 19, 21 2023 against Defendants Kody Angell, Areig Awad, Kevin Bovencamp, Troy Bushey, Mary Jo 22 Currey, John Geisler, Elaine Gravatt, William Hall, Christopher Hallgren, Valarie Herrington, 23 5 The stated timing of the formal standing count differs at different places in the record. The 24 Court uses “around 4:00 p.m.” for simplicity. 1 Rob Herzog, Arben Kullojka, Julie Martin, Jacob Miller, Dianna Mull, Radu Muresan, Stefan 2 Rose, Jack Warner, State of Washington Department of Corrections, and John Does 1-20. 3 Dkt. 40. They later filed a stipulated motion to dismiss Defendants John Geisler and Radu 4 Muresan with prejudice, Dkt. 61, which the Court granted, Dkt. 62. Defendants filed this motion 5 for summary judgment, Dkt. 68, and Plaintiffs filed a response, Dkt. 77. Before Defendants filed 6 their reply, Dkt. 85, the parties filed a stipulated motion to dismiss Defendants Kevin 7 Bovencamp, Areig Awad, Stefan Rose, and Arben Kullojka, Dkt. 80, which the Court granted, 8 Dkt. 83. Accordingly, the remaining defendants are Kody Angell, Troy Bushey, Mary Jo Currey, 9 Elaine Gravatt, William Hall, Christopher Hallgren, Valarie Herrington, Rob Herzog, Julie 10 Martin, Jacob Miller, Dianna Mull, Jack Warner, State of Washington Department of 11 Corrections, and John Does 1-10. Plaintiffs have also filed a motion for summary judgment, 12 Dkt. 69, which the Court will rule on in a separate order. 13 III. DISCUSSION 14 A. Legal Standard: Summary Judgment “The court shall grant summary judgment if the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving 17 party fails to make a sufficient showing on an essential element of a claim in the case on which 18 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). 19 A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could 20 return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 21 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 22 The evidence relied upon by the nonmoving party must be able to be “presented in a form 23 that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). “An affidavit or declaration 24 1 used to support or oppose a motion must be made on personal knowledge, set out facts that 2 would be admissible in evidence, and show that the affiant or declarant is competent to testify on 3 the matters stated.” Fed. R. Civ. P. 56(c)(4); see also Fed. R. Ev. 602 (“A witness may testify to 4 a matter only if evidence is introduced sufficient to support a finding that the witness has 5 personal knowledge of the matter. Evidence to prove personal knowledge may consist of the 6 witness’s own testimony.”). Conclusory, nonspecific statements in affidavits are not sufficient, 7 and “missing facts” will not be “presume[d].” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 8 (1990). However, as stated, “‘[t]he evidence of the nonmovant is to be believed, and all 9 justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014) 10 (per curiam) (quoting Anderson, 477 U.S. at 255). Consequently, “a District Court must resolve 11 any factual issues of controversy in favor of the non-moving party only in the sense that, where 12 the facts specifically averred by that party contradict facts specifically averred by the movant, the 13 motion must be denied.” Lujan, 497 U.S. at 888 (internal quotations omitted). 14 B. The Fourteenth Amendment applies to Plaintiffs’ Section 1983 claim. 15 The parties disagree as to whether Plaintiffs’ Section 1983 claim arises under the Eighth 16 Amendment or the Fourteenth Amendment. See Dkt. 68 at 10; Dkt. 77 at 8. The Eighth 17 Amendment’s guarantee against cruel and unusual punishment protects “inmates serving 18 custodial sentences following a criminal conviction,” whereas the Fourteenth Amendment’s Due 19 Process Clause protects pretrial detainees, who “have not yet been convicted of a crime and 20 therefore are not subject to punishment by the state.” Sandoval v. County of San Diego, 985 F.3d 21 657, 667 (9th Cir. 2021). As someone who was in custody for an unadjudicated community 22 custody violation arising from a previous conviction, Anthony does not fall squarely into either 23 of these categories. 24 1 Defendants point to Nordenstrom for Est. of Perry v. Corizon Health, Inc., No. 3:18-CV- 2 01754-HZ, 2021 WL 2546275 (D. Or. June 18, 2021), which relies on Flores v. Mesenbourg, 3 No. 95-17241, 116 F.3d 483, 1997 WL 303277, at *1 (9th Cir. June 2, 1997), an unpublished 4 disposition in which the Ninth Circuit determined that the Eighth Amendment applied where the 5 plaintiff was detained and awaiting a parole revocation hearing. Id. The panel reasoned that the 6 Eighth Amendment applied because the plaintiff “was subject to incarceration for [a] parole 7 violation because he had originally been convicted and given the sentence which was moderated 8 by parole. His original conviction is the authority under which he was confined after his parole 9 violation.” Id. 10 But in Sandoval, 985 F.3d at 669, a more recent published opinion, the Ninth Circuit 11 applied the Fourteenth Amendment deliberate indifference standard to claims by a probationer.6 12 There, officers found methamphetamine during a probation compliance check and arrested the 13 probationer for violating the terms of his probation and for new drug charges. Id. at 662. The 14 probationer died by overdose shortly after arriving to the jail, and never had a revocation 15 hearing. Id. at 664. 16 Here, as in Sandoval, Anthony was arrested for an alleged violation of his conditions of 17 custody and was awaiting his revocation hearing when he died.7 See Dkt. 71-2 at 3. His claims 18 thus arise under the Fourteenth Amendment. See Hanson v. Blaine County., No. 1:16-CV-00421- 19 BLW, 2021 WL 1601391, at *2 (D. Idaho Apr. 23, 2021) (holding Fourteenth Amendment 20 applies under Sandoval where parolee was arrested and held without a hearing). 21 22 6 The distinction between a person on parole, probation, and community custody is immaterial. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (finding no “difference relevant to the 23 guarantee of due process between the revocation of parole and the revocation of probation”). 24 7 Anthony’s hearing was scheduled for September 26, 2019. Dkt. 71-2 at 3. 1 But even if Sandoval were not binding, the weight of persuasive authority supports 2 application of the Fourteenth Amendment standard. Although parolees are not entitled to the 3 “full panoply of rights” due defendants in a criminal proceeding, they nonetheless have valuable, 4 albeit conditional, liberty, the termination of which inflicts a “grievous loss.” Morrissey v. 5 Brewer, 408 U.S. 471, 480, 482 (1972). They thus have a due process right to a preliminary 6 hearing and a revocation hearing. Id. at 490. And although the parolee’s arrest stems from his 7 prior conviction, “a parolee’s interest in maintaining the freedoms afforded by his parole is a 8 distinct Fourteenth Amendment right.” Hanington v. Multnomah County, 593 F. Supp. 3d 1022, 9 1033 (D. Or. 2022) (citing Morrissey, 408 U.S. at 482) (holding the Fourteenth Amendment 10 governs a parolee’s claims because “any punishment inflicted on [the parolee] based on his 11 alleged parole violation would violate the Fourteenth Amendment”), appeal dismissed sub nom. 12 Hanington v. County of Multnomah, No. 22-35282, 2023 WL 6585898 (9th Cir. June 2, 2023). 13 C. Qualified Immunity 14 Defendants argue they are entitled to qualified immunity. Dkt. 68 at 23–24. “Qualified 15 immunity shields government officials from civil damages liability unless the official violated a 16 statutory or constitutional right that was clearly established at the time of the challenged 17 conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). In analyzing a qualified immunity 18 defense at summary judgment, the Court must determine: (1) “whether the facts, taken in the 19 light most favorable to the party asserting the injury, show the officer’s conduct violated a 20 federal right,” and (2) “whether the right in question was clearly established at the time of the 21 violation.” Tolan v. Cotton, 572 U.S. 650, 656 (2014). “To be clearly established, a right must be 22 sufficiently clear that every reasonable official would have understood that what he is doing 23 violates that right.” Reichle, 566 U.S. at 664 (cleaned up). Although the qualified immunity 24 doctrine does not “require a case directly on point” to show that a right is clearly established, 1 “existing precedent must have placed the statutory or constitutional question beyond debate.” 2 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 3 While the plaintiff bears the burden of proving a right was “clearly established” at the 4 time of the allegedly impermissible conduct, the Court should draw on its “full knowledge of 5 relevant precedent rather than restricting [its] review to cases identified by the plaintiff.” Gordon 6 v. County of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (Gordon II). For a right to be clearly 7 established, “the prior precedent must be ‘controlling’—from the Ninth Circuit or Supreme 8 Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” 9 Id. (quotation marks and citation omitted). 10 The two steps need not be analyzed sequentially; judges may “exercise their sound 11 discretion in deciding which of the two prongs of the qualified immunity analysis should be 12 addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 13 555 U.S. 223, 234 (2009). 14 1. Whether the right in question was clearly established 15 a) Personally participating defendants and supervisory defendants Plaintiffs argue that the alleged constitutional right at issue is the right to mental health 16 treatment in state custody. Dkt. 77 at 32–33 (citing Sandoval, 985 F.3d at 667). They cite district 17 court cases holding that there is a clearly established right to mental health care while 18 incarcerated, including suicide prevention. Id. (collecting cases). 19 With respect to the personally participating defendants and the supervisory defendants, 20 the Court agrees that in 2019, Anthony had a clearly established right to be free from deliberate 21 indifference to his mental health needs, including his risk of suicide. See Clouthier v. County of 22 Contra Costa, 591 F.3d 1232, 1245 (9th Cir. 2010) (holding that, as of 2005, pre-trial detainee 23 had clearly established right to be free from” deliberate indifference to [his] mental health needs 24 1 that resulted in [his] suicide”), overruled on other grounds by Castro v. County of Los Angeles, 2 833 F.3d 1060 (9th Cir. 2016); Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) 3 (holding that “[a] heightened suicide risk or an attempted suicide is a serious medical need”), 4 cert. granted, judgment vacated, 563 U.S. 915 (2011), and opinion reinstated, 658 F.3d 897 5 (2011); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461–62 (9th Cir. 1988) (holding 6 deliberate indifference to suicidal pretrial detainee’s medical and psychological needs proves a 7 Fourteenth Amendment violation), cert. granted, judgment vacated, 490 U.S. 1087 (1989), and 8 opinion reinstated, 886 F.2d 235 (9th Cir. 1989); Wright v. Dunne, No. 15-CV-02671-TLN- 9 CKD, 2020 WL 977963, at *8 (E.D. Cal. Feb. 28, 2020) (“[T]here exists a clearly established 10 right to be free from deliberate indifference to serious mental health needs, including risk of 11 suicide.”). The Ninth Circuit’s decision in Gordon v. County of Orange, 888 F.3d 1118, 1124–25 12 (9th Cir. 2018) (“Gordon I”), made clear that the objective deliberate indifference standard 13 applied to such Fourteenth Amendment claims at the time of the events here. 14 b) Policymaking Defendants Martin, Herzog, Currey, and Warner 15 In Taylor v. Barkes, 575 U.S. 822 (2015) (per curiam), the U.S. Supreme Court reversed 16 a Third Circuit opinion that had held there was a clearly established right, as of 2004, “to the 17 proper implementation of adequate suicide prevention protocols.” Id. at 824. The Court 18 concluded that such a right was not established by a Supreme Court decision or a “robust 19 consensus” in the Courts of Appeals. Id. at 826. Assuming without deciding that a right can be 20 clearly established by circuit precedent alone,8 the Court also held that a broader right to 21 adequate suicide prevention protocols was not clearly established by existing Third Circuit 22 authority holding that an officer must not act with deliberate indifference toward the suicide risk 23 24 8 As discussed above, this remains the standard in the Ninth Circuit. Gordon II, 6 F.4th at 969. 1 of a particular inmate. See id. at 826–27 (“[E]ven if the Institution’s suicide screening and 2 prevention measures contained the shortcomings that respondents allege, no precedent on the 3 books in November 2004 would have made clear to petitioners that they were overseeing a 4 system that violated the Constitution.”). 5 Although Taylor leaves open the possibility that a jail or prison policy related to suicide 6 prevention could be so deficient that it amounts to deliberate indifference in violation of the 7 Fourteenth Amendment, the relevant Ninth Circuit precedent contains the same distinction as the 8 Third Circuit precedent at issue in Taylor: while a detainee has a clearly established right to be 9 free from deliberate indifference toward his individual risk of suicide, there is not precedent 10 clearly establishing a broader right to effective suicide prevention protocols. This Court must 11 therefore consider the distinction between “an individual being deliberately indifferent to the 12 suicidal ideations of a particular inmate and a government entity acting with deliberate 13 indifference toward potential inmate suicides on a policy level.” NeSmith v. County of San 14 Diego, No. 15CV629 JLS (JMA), 2016 WL 4515857, at *6 (S.D. Cal. 2016); see also Wright, 15 2020 WL 977963, at *8 (distinguishing between “a failure to implement suicide prevention 16 protocols at a ‘policy level’” and deliberate indifference to a particular inmate’s needs). 17 Citing their experts, Plaintiffs identify the following DOC policies and practices that they 18 contend “obviously put inmates at risk of serious harm”: 19 • A defective “suicide prevention system” that, with “reckless disregard” to the obvious consequences for suicidal inmates: (1) lacked a strategy to document 20 critical information regarding the suicide risk of violators such as Anthony Christie and to provide that information to the healthcare and custody staff responsible for 21 the prevention of suicide; (2) ignored “multiple sources of information in the community”; (3) failed to retrieve “prior records despite the knowledge that they 22 could contain critical information regarding suicide risks”; (4) failed to provide “safe housing of suicidal inmates and safety monitoring by correctional officers”; 23 (5) operated on an all or nothing principle that the offender is either suicidal or not suicidal; (6) “failed to provide minimally adequate behavioral health treatment”; 24 (7) failed to develop and implement an effective suicide risk assessment protocol”; 1 (8) did not employ “competent and supervised mental health clinicians”; and (9) “failed to provide a sufficient number of mental health clinicians to provide 2 comprehensive suicide risk assessments and mental health treatment for inmates with an elevated risk of suicide.” 3 • Maintenance of a Violator Confinement policy that “lacks purpose, 4 responsibilities, and clear direction” by (1) “not provid[ing] a directive regarding maintaining medical or mental health screening forms or reviewing prior forms for 5 Violators if they return on subsequent violations”; (2) not requiring sufficient training; and (3) failing to adequately define “security rounds and tier checks” and 6 “restrictive housing” in the Violator Unit. 7 Dkt. 77 at 28 (internal citations omitted). 8 Plaintiffs argue that Martin, Herzog, Currey, and Warner should be held liable for 9 implementing these policies. Id. But as the law existed at the time of Anthony’s death, it would 10 not have placed these defendants on notice that their implementation of the policies violated 11 Anthony’s constitutional rights. Martin, Herzog, Currey, and Warner are thus entitled to 12 qualified immunity for the claims against them based on their role in implementing DOC policy. 13 The Court will address Plaintiffs failure-to-train claims against these Defendants in a later 14 section. 15 2. Whether Plaintiffs can show Defendants’ conduct violated a federal right 16 Pretrial detainees have a “constitutional right to adequate medical treatment” under the 17 Fourteenth Amendment. Sandoval, 985 F.3d at 887 (citing Estelle v. Gamble, 429 U.S. 97, 104– 18 05 (1976)). As discussed above, this includes treatment based on the detainee’s mental health 19 and risk of suicide. To establish a claim for failure to provide constitutionally adequate medical 20 care to a pretrial detainee, a plaintiff must show: 21 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined [including a decision with respect to medical 22 treatment]; 23 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 24 1 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the 2 high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 3 (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 4 Sandoval, 985 F.3d at 669 (quoting Gordon I, 888 F.3d at 1125) (alteration in original). “To 5 satisfy the third element, the plaintiff must show that the defendant’s actions were ‘objectively 6 unreasonable,’ which requires a showing of ‘more than negligence but less than subjective 7 intent—something akin to reckless disregard.’” Id. (quoting Gordon I, 888 F.3d at 1125). 8 a) Personally participating defendants: 9 (1) Gravatt 10 Gravatt was an RN3 “medical supervisor for the IMU” VU. Dkt. 78-14 at 5. She was not 11 working on September 20 or 21, 2019, but she documented Anthony’s mental health history for 12 his August 2019 MCC intake. Id. at 11. On August 7, 2019, Gravatt filled out his “Restricted 13 Housing Mental Health Screening” form. Dkt. 78-16. Although mental health professionals 14 usually complete this form, Gravatt said she completed Anthony’s to help the busy and 15 understaffed mental health team. Dkt. 78-14 at 10–11. 16 Plaintiffs argue that Gravatt failed to complete the form accurately by omitting that 17 Anthony reported experiencing hallucinations. Dkt. 77 at 12. But the form asks whether the 18 individual has experienced hallucinations when sober, whereas Anthony disclosed experiencing 19 hallucinations when high on methamphetamine. Compare Dkt. 17-16 at 2 with Dkt. 78-14 at 8. 20 More importantly, there is no evidence that including this information on the form would have 21 changed anything about Anthony’s September 2019 detention, even if the medical and mental 22 health staff did review the form. 23 24 1 Next, Plaintiffs argue that Gravatt failed to properly update the severity of Anthony’s 2 mental health needs and suicide risk into the PULHES coding system. Dkt. 77 at 13–14. They 3 contend that appropriate coding of Anthony’s suicide risk would have required placing him in a 4 mental health residential treatment unit rather than in solitary confinement at MCC. Dkt. 77 at 14 5 (citing Dkt. 78-3; Dkt. 78-31 at 14). 6 When he was detained in August 2019, Anthony had PULHES codes of S1, indicating 7 “[n]o serious mental health symptoms currently evident but may have mild symptoms. Adaptive 8 functioning (e.g., programming, school, occupational, social) in the general population is 9 adequate without mental health treatment. Manages problems adequately. Does not require 10 ongoing mental health counseling or psychotropic medications,” and R1, indicating “[n]o 11 reported history of self-harm behavior with the intent to die.” Dkt 78-3 at 8–9; Dkt 78-31 at 14. 12 Plaintiffs’ expert, Sean Price, asserts that based on the information Gravatt collected during his 13 August 2019 intake, Anthony’s “R” code should have been updated to be R4, which indicates 14 “[a] reported or documented history of self-harm behavior with the intent to die within the past 6 15 months.” Dkt. 78-3 at 9, Dkt. 78-31 at 15. Price does not comment on Anthony’s “S” code, but 16 Plaintiffs argue it should have been S4, which indicates: 17 Significant major mental disorder; serious symptoms evident. Symptoms result in serious impairment in adaptive functioning and may include a safety risk for the 18 Incarcerated Individual and/or others; requires treatment in a mental health Residential Treatment Unit. Treatment typically includes stabilization on 19 psychotropic medications and the development of self-management skills. Available resources must consist of onsite mental health providers and psychiatric 20 practitioners. Incarcerated Individuals must be assigned to a Residential Treatment Unit (WSP, SOU, and WCCW). 21 Dkt. 78-3 at 8. An S code of 4 “[r]equires sub-acute or chronic treatment in a Mental Health 22 Residential Unit (WSP, SOU, or WCCW). Resources include MHP’s and psychiatric support 23 24 1 onsite.” Id. at 8. While an “R code will not influence a person’s placement,” “[a] person with an 2 R3 cannot have an S code lower than 2.” Id. at 9. 3 Defendants argue that under the policy for the PULHES coding system, mental health 4 providers are to input the codes, and as a medical nurse, Gravatt is not responsible for doing so. 5 Dkt. 85 at 5. But even if it was Gravatt’s responsibility to input the R and S codes, plaintiffs have 6 not shown that a PULHES code corresponding to Anthony’s August 2019 detention would have 7 impacted his intake in September 2019. 8 Finally, Plaintiffs argue that Gravatt demonstrated deliberate indifference by failing to 9 alert a mental health professional of Anthony’s high risk of suicide as required by DOC and 10 MCC policy. Price asserts that Gravatt should have informed mental health professionals of 11 Anthony’s history of self-harm, attempted “suicide by cop,” and suicidal thoughts so that mental 12 health staff could properly conduct a mental health assessment and update his PULHES codes to 13 reflect his suicide risk. Dkt. 78-31 at 14–15. But Price also notes that a “screening completed by 14 a provider that does not specialize in mental health will be reviewed by a mental health 15 employee/contract staff the next business day” pursuant to DOC policy. Id. at 14. 16 Further, even if a mental health employee did review Anthony’s form or otherwise follow 17 up with him, neither party has presented evidence from which a jury could conclude that such a 18 follow-up would have resulted in any changes to his September 2019 detention. Nor is there 19 evidence showing such a follow-up would have led Anthony to treatment. 20 Thus, even if any of these actions constituted objective deliberate indifference, there is 21 not evidence from which a jury could find that Gravatt caused Anthony’s injuries or violated his 22 right to medical care, including suicide prevention. Gravatt is entitled to qualified immunity. 23 24 1 (2) Angell 2 Angell was a DOC Corrections Officer. Dkt. 78-19 at 5. When he and Hall were 3 conducting a formal standing count around 4:00 p.m. on September 21, 2019, they discovered 4 Anthony lying face-down on the floor next to his bed. Id. at 10; Dkt. 71-18 at 4, 6. Angell noted 5 that Anthony’s head and neck were under a desk and obstructed from view. Id. at 4. He also 6 reported noticing that one of Anthony’s flip flops had fallen off. Id. Angell and Hall knocked on 7 the door and instructed Anthony to move for count but he did not move or respond. Dkt. 78-19 at 8 10. They tried to awaken Anthony to no avail. Dkt. 71-18 at 6. Angell requested assistance by 9 radio to “go in to make sure that” the inmate is “okay and not having some kind of medical 10 issue.” Dkt. 78-19 at 12. He noted that they request assistance in part for safety concerns: “in 11 case when we do go in to make sure that they’re all right that they don’t get up and try and fight 12 us.” Id. at 12. When two other corrections officers came to assist, Angell and Hall continued the 13 count. Dkt. 70-1 at 110. They “reported back to the cell to provide additional support” once they 14 completed it. Dkt. 71-18 at 6. After receiving authorization from a sergeant,9 the assisting staff 15 members opened Anthony’s cell door about two minutes after Angell and Hall discovered 16 Anthony on the ground of his cell. Dkt. 78-19 at 11. 17 Plaintiffs argue that either “(1) Angell conducted a count, found an inmate that was dead 18 . . . and did nothing; or (2) Angell conducted a count, found an inmate that was dying, and did 19 nothing to prevent his death.” Dkt. 77 at 15. But neither party has offered evidence to counter the 20 expert opinion of Dr. Sperry “that Anthony Christie had been dead for a period of several hours 21 when his body was discovered.” Dkt. 78-43 at 7. Nor does any evidence show that Angell could 22 23 9 According to Angell, officers cannot enter the cell without authorization from the sergeant or lieutenant for safety reasons. Dkt. 78-19 at 13. 24 1 have, but did not, prevented Anthony’s death. Even if one might view the delay in entering 2 Anthony’s cell after he failed to respond as callous, there is simply no evidence from which a 3 jury could conclude that it contributed to his death. Angell is therefore entitled to qualified 4 immunity because his actions did not cause Anthony’s injuries. See Sandoval, 985 F.3d at 669. 5 (3) Hall 6 Hall was a DOC corrections officer who worked an overtime shift in the VU on 7 September 21, 2020. Dkt. 78-21 at 6–7. Hall performed the 4:00 p.m. formal standing count with 8 Angell. Hall is entitled to qualified immunity for his actions during the formal standing count for 9 the same reasons as Angell. 10 Hall also performed the 2:00 p.m. and 3:00 p.m. tier checks, which require the officer to 11 “look in a cell to see if the individual’s in their []cell, and if they’re alive.” Id. at 10, 13. There is 12 no evidence that Hall was aware of a heightened risk for Anthony compared to other detainees. 13 Hall testified that he recalls seeing Anthony asleep on his bed, “probably under the covers,” 14 when he reached his cell at 2:16 p.m. and 3:13 p.m. Id. at 13–14, 16. He explained that officers 15 cannot “really [say] that the individual is alive or not, because it’s a certain distance” between 16 the cell door and the bed, but an officer might be able to confirm the individual is alive by seeing 17 that an arm or leg is not purple, or by seeing that the individual is breathing. Id. at 17. But he 18 admitted that “honestly, I cannot say that I . . . saw him breathing due to the distance between the 19 []cell door and then the []bed and breathing habits and covers on him.” Id. at 18. Video footage 20 of each tier check shows Hall briefly glance in a small window on Anthony’s cell door as he 21 walked by without pausing. Dkt. 22 at 14:17:32; Dkt. 23 at 15:13:40–42. 22 Plaintiffs argue that Hall was deliberately indifferent while performing the tier checks by 23 failing to ensure Anthony was alive. Dkt. 77 at 18. They note Dr. Sperry’s expert opinion that 24 Anthony “did not die ‘shortly prior to being checked in his cell’” around 4:00 p.m., id. (quoting 1 Dkt. 78-43 at 7), and they contend that “[h]e was likely in the process of dying during one of” 2 the tier checks, id. Plaintiffs argue that “a reasonable juror could find that Defendant Hall’s 3 failure to check that Anthony was alive at all in the preceding three hours put him at an increased 4 risk of substantial harm.” Id. A reasonable juror could also doubt whether Hall even saw 5 Anthony on the bed at 2:00 or 3:00 p.m. in his brief glance towards the cell window, given 6 Dr. Sperry’s time-of-death testimony and Hall’s equivocal memory; weighing the credibility of 7 such testimony is the jury’s traditional role. 8 This claim thus exemplifies the arbitrary impact of qualified immunity jurisprudence on 9 individual litigants. In July 2021, the Ninth Circuit held in Gordon II that pre-trial detainees like 10 Anthony have a due process right “to direct-view safety checks sufficient to determine whether 11 their presentation indicates the need for medical treatment.” 6 F.4th at 973. Had Anthony’s death 12 occurred after Gordon II, the evidence Plaintiffs have presented would be sufficient for a 13 reasonable jury to conclude, viewing the facts in Anthony’s favor, that Hall’s tier checks were so 14 cursory they demonstrated deliberate indifference to that right. But because Anthony died less 15 than two years earlier, before the Gordon II court clarified that this right was “clearly 16 established,” qualified immunity takes that decision away from the jury, and the Section 1983 17 claims against Hall must be dismissed. See, e.g., Nicholson v. City of Los Angeles, 935 F.3d 685, 18 690 (9th Cir. 2019) (requiring a right to be clearly established “at the time of the alleged 19 misconduct”). 20 (4) Herrington 21 Herrington was a Licensed Mental Health Counselor (LMHC) and worked at DOC as a 22 Psychological Associate. Dkt. 78-24 at 2. She conducted Anthony’s Housing Mental Health 23 Screening on September 20, 2019. Id. During that assessment, Anthony denied that he had ever 24 received therapy or medication for a mental health concern or suicide attempt, denied that he had 1 ever tried to hurt or kill himself, and said he did not feel he needed mental health services. 2 Dkt. 78-24 at 2. 3 Herrington testified that she reviewed the mental health records of inmates from prior 4 detentions at MCC as part of the screenings “[i]f they were available,” but “[t]hey were not 5 always available ahead of time.” Dkt. 78-25 at 10. She explained that “they may be in the binder 6 that gets put together for the person before they come in. Otherwise, they were archived in a file 7 room.” Id. Although she would review records in the binder when conducting a mental health 8 screening, she would not retrieve and review the archived records. Id. 9 Plaintiffs argue that Herrington’s conduct constitutes deliberate indifference because she 10 could have, but chose not to, become aware of Anthony’s suicide risk factors by retrieving his 11 previous records from the file room or accessing the “Chronos” database. Dkt. 77 at 19. They 12 argue that based on her testimony, had she reviewed these records, she would have asked 13 Anthony follow up questions as to certain red flags, and if his answers “endorsed suicidality,” 14 she would have performed “a suicide risk screen detection and a suicide risk assessment.” 15 Dkt. 77 at 19 (quoting Dkt. 78-25 at 26). Ultimately, they argue that according to their expert, a 16 “comprehensive risk assessment would have required placing Mr. Christie on suicide precautions 17 and developing a safety plan to reduce his risk of suicide.” Id. at 19 (quoting Dkt. 78-44 at 11). 18 Viewing this evidence in the light most favorable to Plaintiffs, and drawing all reasonable 19 inferences in their favor, this evidence provides strong support for the Estate’s negligence claim 20 against DOC. But it does not allow a reasonable jury to find that Herrington’s conduct 21 constituted objective deliberate indifference. The test for objective deliberate indifference under 22 Sandoval and Gordon I requires a showing that the defendant “did not take reasonable available 23 measures to abate” the risk of serious harm to a detainee, even though a reasonable official 24 “would have appreciated the high degree of risk involved—making the consequences of the 1 defendant’s conduct obvious.” Gordon I, 888 F.3d at 1125. The plaintiff must “prove more than 2 negligence but less than subjective intent—something akin to reckless disregard.” Id. (citation 3 omitted). The evidence in the record does not support a finding that it would have been obvious 4 to a reasonable official in Herrington’s position that failing to review Anthony’s mental health 5 records from his earlier detentions placed him “at substantial risk of suffering serious harm.” Id. 6 Plaintiffs cite Galley v. County of Sacramento, No. 2:23-CV-00325 WBS AC, 2023 WL 7 6129785, at *2 (E.D. Cal. Sept. 19, 2023), in which the court applied Gordon I to conclude that a 8 medical screening nurse plausibly acted with deliberate indifference by not implementing 9 alcohol detoxification and withdrawal measures. Dkt. 77 at 24. The court reasoned that she 10 should have known of information in the decedent’s jail medical records when he had been 11 detained in jail multiple times and regularly informed jail staff of his alcohol dependency. 12 Galley, 2023 WL 6129785, at *2. But in Galley, the nurse knew that she was conducting a 13 screening because of the earlier records and, crucially, the decedent “exhibited clear signs of 14 alcohol impairment while [the nurse] was medically screening him.” Id. Had Anthony exhibited 15 clear signs of suicidality during his screening, or had other information alerted Herrington to an 16 obvious risk from failing to review his earlier records, the claims against Herrington would likely 17 proceed. But that is not the evidentiary record before this Court. Herrington therefore is entitled 18 to qualified immunity.10 19 20 21 22 10 Plaintiffs cite Galley, 2023 WL 6129785, and several other cases in which a medical provider failed to review a detainee’s medical records. Dkt. 77 at 34–35 (collecting cases). This Court 23 agrees that the failure to review medical records can demonstrate deliberate indifference under the Eighth or Fourteenth Amendment in certain factual contexts. But the cases cited are not 24 analogous to the facts here. 1 (5) Bushey 2 A Registered Nurse in the VU, Bushey conducted Anthony’s medical intake screening on 3 September 20, 2019. Dkt. 78-26. Plaintiffs argue that, like Herrington, Bushey acted with 4 deliberate indifference because he had access to Anthony’s records but chose not to review them. 5 Dkt. 77 at 20. They cite Bushey’s deposition testimony that if he learned an inmate recently 6 attempted self-harm, he would have informed the mental health department. Dkt. 77 at 20 (citing 7 Dkt. 78-27 at 39). They contend that had he done so, Herrington would have followed up as to 8 Anthony’s risk of suicide, and DOC would have taken suicide precautions. Id. at 20–21 (quoting 9 Dkt. 78-44 at 11). For the same reasons pertaining to Herrington discussed above, although this 10 evidence is relevant to DOC’s alleged negligence, it is not sufficient to support a finding of 11 objective deliberate indifference, and Bushey is entitled to qualified immunity. 12 (6) Miller Miller was Anthony’s community corrections officer from May 2018 until his death. 13 Dkt. 78-13 at 5, 7. Plaintiffs allege that Miller’s conduct constituted deliberate indifference 14 because (1) he was aware of Anthony’s risk of suicide but did not report that risk to jail officials 15 when he booked Anthony on September 19, and (2) he did not compel or sufficiently encourage 16 Anthony to seek mental health treatment. Dkt. 77 at 25. 17 As to Plaintiffs’ first theory of Miller’s deliberate indifference, when Miller arrested 18 Anthony on March 25, 2019, Anthony said “he wanted to not be alive be anymore” and that “he 19 is suicidal all the time.” Dkt. 71-2 at 12. Miller had regular contact with Anthony in the months 20 between that arrest and his suicide. See generally id. While Miller testified that Anthony did not 21 tell him that he was suicidal when Miller booked him in WCJ on September 19, 2019, Dkt. 70-1 22 at 34, Trina repeatedly called Miller raising concerns about Anthony’s suicidality. Dkt. 78-33 at 23 6. She testified that the last few times she called Miller, she “[a]bsolutely” told him she was 24 1 concerned about Anthony’s suicidality. Id. at 7–8. Miller was also aware that Anthony had 2 several suicide risk factors, including addiction to alcohol and methamphetamine. See generally 3 Dkt. 71-2. A reasonable jury could find that Miller knew or should have known that Anthony’s 4 suicidality was recent, persistent, and serious. 5 In Conn v. City of Reno, the Ninth Circuit held that a jury could find deliberate 6 indifference (even under the stricter subjective standard) from the failure of arresting police 7 officers to inform jail personnel of a detainee’s substantial risk of suicide. 591 F.3d at 1094–99. 8 Defendants argue that Conn is not analogous because the officers there witnessed the detainee’s 9 acute suicidality during her arrest, while Miller testified that Anthony did not express suicidal 10 ideation to him on the last arrest before his death. See Dkt. 85 at 6–7. But the import of Conn is 11 that the failure to communicate knowledge of an arrestee’s serious risk of suicide can establish 12 deliberate indifference. That Miller’s knowledge of Anthony’s risk was based on many contacts 13 over the past six months rather than one dramatic incident during the arrest is not a meaningful 14 distinction. Miller made an intentional decision to arrest Anthony and cause his incarceration 15 without passing on his knowledge of Anthony’s suicide risk. Based on Conn, there is sufficient 16 evidence to put to the jury the questions whether that decision placed Anthony at substantial risk 17 of serious harm, whether a reasonable official in Miller’s position would have appreciated the 18 risk, and whether Miller’s failure to provide that information was a proximate cause of 19 Anthony’s death. See Gordon I, 888 F.3d at 1125; see also Dkt. 71-6 at 9 (testimony that jail 20 mental health records would typically go with the inmate to DOC). Miller’s motion for qualified 21 immunity is denied. 22 As to Plaintiffs’ second theory of Miller’s deliberate indifference, the record shows that 23 Miller did encourage Anthony to seek mental health treatment at multiple points throughout his 24 community custody sentence. See, e.g., Dkt. 71-2 at 5, 29. And Miller testified that given 1 Anthony’s difficulty complying with his existing court-ordered conditions of community 2 custody, he did not think adding mental health treatment as an additional term of Anthony’s 3 supervision was likely to succeed. Dkt. 70-1 at 18–19. Plaintiffs have not offered contrary 4 evidence or shown that Miller’s failure to encourage or impose additional mental health 5 treatment violated a clearly established right. Miller is entitled to qualified immunity as to this 6 theory.11 7 b) Supervisory and policymaking Defendants 8 Section 1983 does not authorize liability under the theory of respondeat superior. Iqbal, 9 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must 10 plead that each Government-official defendant, through the official’s own individual actions, has 11 violated the Constitution.”). “A defendant may be held liable as a supervisor under § 1983 ‘if 12 there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a 13 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 14 violation.’” Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011) (quoting Hansen v. Black, 15 885 F.2d 642, 646 (9th Cir. 1989)). To show direct liability, a “plaintiff must show the 16 supervisor breached a duty to plaintiff which was the proximate cause of the injury.” Redman v. 17 County of San Diego, 942 F.2d 1435, 1446–47 (9th Cir. 1991). Direct liability exists “even 18 without overt personal participation in the offensive act if supervisory officials implement a 19 policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the 20 moving force of the constitutional violation.’” Id. at 1446 (quoting Hansen, 885 F.2d at 646). 21 22 23 11 Even if Plaintiffs had offered more evidence on this theory, Miller would be entitled to quasi- judicial immunity for his decisions regarding the imposition of community custody conditions. 24 Swift v. California, 384 F.3d 1184, 1188–91 (9th Cir. 2004). 1 “The requisite causal connection” exists where the supervisor “sets in motion a ‘series of 2 acts by others which the actor knows or reasonably should know would cause others to inflict’ 3 constitutional harms,” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009), or “knowingly 4 refus[es] to terminate a series of acts by others, which [the supervisor] knew or reasonably 5 should have known would cause others to inflict a constitutional injury,” Starr, 652 F.3d at 6 1207–08. “A supervisor can be liable in his individual capacity for his own culpable action or 7 inaction in the training, supervision, or control of his subordinates; for his acquiescence in the 8 constitutional deprivation; or for conduct that showed a reckless or callous indifference to the 9 rights of others.” Id. at 1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 10 1998)). 11 Plaintiffs make several arguments for supervisory liability based on a theory of 12 ratification. Dkt. 77 at 10–11, 29–30. Ratification is typically a theory of Monell liability that 13 Plaintiffs concede is not at issue in this case against a state agency and its employees. See 14 Dkt. 77 at n.1. Although the Ninth Circuit has allowed evidence of ratification to be used to 15 support individual supervisory liability, see Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 16 Cir. 1991), “the circumstances of the ratification must also demonstrate that the supervisor had 17 previously set in motion acts of others which caused the others to inflict a constitutional injury.” 18 Peschel v. City of Missoula, 686 F. Supp. 2d 1092, 1102 (D. Mont. 2009) (citing Larez, 946 F.2d 19 at 645–46); Leibel v. City of Buckeye, 364 F. Supp. 3d 1027, 1040 (D. Ariz. 2019) (same). 20 (1) Hallgren 21 Hallgren was a Lieutenant of the MCC Special Offender Unit, which includes the VU. 22 Dkt. 78-41 at 6–7. He supervised VU sergeants and corrections officers, including Sergeant 23 Mull, Sergeant Rose, Hall, and Angell. See Dkt. 78-41 at 8. 24 1 Plaintiffs argue Hallgren ratified his subordinates’ decisions because he testified in his 2 deposition that he approved of their “actions . . . and the basis for them” on the day Anthony 3 died. Dkt. 77 at 29. Taken in the light most favorable to Plaintiffs, this is not enough to establish 4 individual liability. Plaintiffs have not offered evidence showing that Hallgren personally 5 participated in or directed the violations. Nor have they shown that he implemented a 6 constitutionally deficient policy or ratified or encouraged behavior that set in motion a 7 constitutional violation by others. See Larez, 946 F.2d at 646 (not plain error to allow theory that 8 police chief “condoned, ratified, and encouraged the excessive use of force” where jury was 9 correctly instructed that to be liable in his individual capacity, chief must have set in motion or 10 refused to terminate a series of acts which he knew or should have known would result in 11 constitutional injury). Testifying in a deposition that he approved of his subordinates’ conduct is 12 not sufficient to establish individual liability through ratification. Hallgren is entitled to qualified 13 immunity. 14 (2) Mull 15 Mull was a Sergeant at the MCC VU. Dkt. 78-42 at 6–7. She supervised six corrections 16 officers. Id. at 7. She started a shift at 2:00 p.m. on September 20, 2019. Id. at 8. Mull responded 17 to Hall’s radio call when he found Anthony nonresponsive. Id. at 9. She described the incident in 18 her deposition testimony as follows: 19 When I looked inside the window, I saw the offender laying on the floor, his back, I believe, was turned to me, and all I could see was something around his neck from 20 the back, and part – part of this body was kind of – his head []kind of underneath the – the sink. And as soon as I saw that and I saw no movement, I immediately 21 notified control booth to open that cell so we can go in . . . and see what was going on with the offender and why he wasn’t moving or responding. 22 Id. 23 24 1 Plaintiffs argue that “Mull ratified the acts and omissions of her subordinates by 2 testifying that in her ‘professional opinion as their supervisor’ the corrections officers she 3 supervised (including Defendants Hall and Angell), complied ‘with DOC policy and established 4 practices.’” Dkt. 77 at 30 (quoting Dkt. 78-42 at 9). Mull is entitled to qualified immunity for the 5 same reasons as Hallgren. 6 (3) Martin, Herzog, Currey, and Warner 7 Plaintiffs argue that policymakers Martin, Herzog, Currey, and Warner failed “to 8 adequately train CCOs or provide ‘clear instruction/policy on treatment referrals, follow-ups, 9 interactions with treatment providers, etc.’— a ‘large gap in DOC policy that would obviously 10 result in serious harm or even death to offenders.’” Dkt. 77 at 28 (internal citations omitted). But 11 they cite nothing in the record to show that Martin, Herzog, Currey and Warner’s training was 12 constitutionally inadequate, nor do they specify how their actions caused a violation of 13 Anthony’s clearly established rights. Defendants Martin, Herzog, Curry, and Warner are thus 14 entitled to summary judgment as to the failure to train claims. 15 D. Familial association claim The Court turns to Plaintiffs’ Fourteenth Amendment claims for impermissible 16 interference with familial association. “Parents and children may assert Fourteenth Amendment 17 substantive due process claims if they are deprived of their liberty interest in the companionship 18 and society of their child or parent through official conduct.” Lemire v. Cal. Dep’t of Corr. & 19 Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013). To prevail on a Fourteenth Amendment familial 20 association claim, Plaintiffs must show that the official conduct “shocks the conscience.” Id. 21 (citing Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). Where an official “makes a snap 22 judgment because of an escalating situation,” the “purpose to harm” standard applies. Wilkinson 23 v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) Where, as here, actual deliberation was practical 24 1 under the circumstances, “an officer’s deliberate indifference may suffice to shock the 2 conscience.” Nicholson, 935 F.3d at 692–93 (quoting Wilkinson, 610 F.3d at 554). And because 3 Anthony was a detainee, the same “objective” deliberate indifference applicable to his mental 4 health care claims applies to this claim as well. See Castro, 833 F.3d at 1070–71. 5 The Court has already ruled on whether Plaintiffs have presented evidence sufficient to 6 meet the objective deliberate indifference standard for each individual defendant. And 7 Defendants have not asserted a distinct qualified immunity defense as to Plaintiffs’ familial 8 association claims. The Court thus reaches the same conclusion as it did for Plaintiffs’ other 9 Fourteenth Amendment claims—only the claim against Defendant Miller may go forward. 10 E. Discretionary immunity 11 Defendants argue that DOC is entitled to discretionary immunity regarding its formation 12 of policy. Dkt. 68 at 24. But Plaintiffs have clarified that they are not advancing a claim based on 13 a deficient DOC policy (as opposed to negligent implementation of policies) or other high-level 14 decision that would be subject to discretionary immunity. Dkt. 81 at 4. DOC’s motion based on 15 discretionary immunity is denied as moot. 16 F. Quasi-judicial immunity Defendants argue that DOC and Miller are entitled to quasi-judicial immunity for any 17 negligence claim based on the setting, modifying, and enforcing conditions of community 18 custody. Dkt. 68 at 25. Plaintiffs clarify that they “do not take issue with Defendant Miller’s 19 setting, modifying, or enforcing Anthony’s conditions of custody.” Dkt. 77 at 52. The Court has 20 addressed above the application of quasi-judicial immunity to Plaintiffs’ claims that Miller 21 should have encouraged or required Anthony to engage in mental health treatment. See supra 22 n. 11. The motion for summary judgment on this basis is otherwise denied as moot. 23 24 1 G. Claims under RCW 4.24.010 2 Defendants argue that Trina may not bring a claim under RCW 4.24.010 in her personal 3 capacity. Plaintiffs clarify that Trina has not. See Dkt. 77 at 2 n.1 (citing Dkt. 40-1 ¶¶ 76–94). 4 Defendants’ motion on this basis is denied as moot. 5 H. Negligence claim Defendants argue that Plaintiffs’ claim alleging DOC breached its “common law duty to 6 ensure inmates’ health, welfare, and safety” fails because Plaintiffs fail to show sufficient 7 evidence of causation. Dkt. 68 at 26–27 (citing Gregoire v. City of Oak Harbor, 170 Wash. 2d 628, 8 635 (2010) (plurality opinion)). 9 Under Washington state law, the elements of a negligence cause of action are the 10 existence of a duty to the plaintiff, breach of the duty, and injury to plaintiff proximately caused 11 by the breach.” Hertog v. City of Seattle, 138 Wash. 2d 265, 275, 979 P.2d 400 (1999). 12 Proximate cause consists of two elements: cause-in-fact and legal causation. Hartley v. State, 103 13 Wash. 2d 768, 777, 698 P.2d 77 (1985). 14 “Cause in fact concerns ‘but for’ causation, events the act produced in a direct unbroken 15 sequence which would not have resulted had the act not occurred.” Hertog, 138 Wash. 2d at 16 282–83. “When the connection between a defendant’s conduct and the plaintiff’s injury is too 17 speculative and indirect, the cause in fact requirement is not met.” Taggart v. State, 118 Wash. 18 2d 195, 227 822 P.2d 243 (1992). “Establishing cause in fact involves a determination of what 19 actually occurred and is generally left to the jury.” Schooley v. Pinch’s Deli Market, 134 Wash. 20 2d 468, 478, 951 P.2d 749 (1998). “Legal cause” is grounded in policy determinations about how 21 far the consequences of a defendant’s acts should extend. Id. “Where the facts are not in dispute, 22 legal causation is for the court to decide as a matter of law.” Id. 23 24 1 Defendants’ motion for summary judgment on causation fails on both grounds. The 2 connection between DOC’s alleged breach of its duty to ensure Anthony’s safety while in 3 custody and his death by suicide is not too speculative and indirect for a jury to find cause in 4 fact. See Taggart, 118 Wn.2d at 227. Nor is that connection so “remote or insubstantial” as to 5 preclude liability against DOC as a matter of policy. See Schooley, 134 Wn.2d at 478–79. As 6 discussed throughout this order, Plaintiffs have presented abundant evidence from which a jury 7 could reasonably find that but for the failure to consolidate and review the numerous records in 8 DOC’s possession showing Anthony’s heightened risk of suicide, DOC would have taken 9 additional measures during his final incarceration that would have prevented his death, just as 10 they had during his previous detentions. DOC may ultimately persuade a jury otherwise, but it is 11 not entitled to judgment on causation as a matter of law. 12 IV. DEFENDANTS’ MOTION TO STRIKE In their reply brief, Defendants move to strike three exhibits submitted by Plaintiffs in 13 opposition to summary judgment: Dkt. 78-28, a printout of cell phone records; Dkt. 71-18, a 14 DOC “Incident Review Report” regarding Anthony’s death; and Dkt. 71-20, a report from the 15 Office of the Corrections Ombuds on Anthony’s death. Dkt. 85 at 2. 16 The Court DENIES the motion to strike Dkt. 78-28 as moot because the Court has not 17 relied on that document in ruling on the summary judgment motion. 18 The Court DENIES the motion to strike Dkt. 71-18. Defendants argue the “Incident 19 Review Report” is not capable of admission into evidence because it is a subsequent remedial 20 measure under Federal Rule of Evidence 407. Dkt. 85 at 2. This argument is unpersuasive. 21 Evidence of retrospective department investigations that “assess what happened . . . without 22 meting out discipline or changing . . . policy” is not excluded by FRE 407. Aguilar v. City of Los 23 24 1 Angeles, 853 F. App’x 92, 95 (9th Cir. 2021) (holding it was error for district court to exclude 2 findings of in-custody death investigation). 3 The Court also DENIES the motion to strike Dkt. 71-20. Although the Court will 4 entertain further argument as to the admissibility of this document at trial, it is relied on in the 5 summary judgment order only to summarize DOC’s “red folder” policy, the underlying facts of 6 which are capable of admission through other witnesses even if the document is excluded. See 7 Fed. R. Civ. P. 56(c)(2) (evidence cited to at summary judgment must be capable of presentation 8 “in a form that would be admissible in evidence”). 9 V. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants’ motion for summary 10 judgment in part and DENIES it in part. The Court ORDERS as follows: 11 12 • Summary judgment is GRANTED as to the Section 1983 claims against 13 Defendants Kody Angell, Troy Bushey, Mary Jo Currey, Elaine Gravatt, William 14 Hall, Christopher Hallgren, Valarie Herrington, Rob Herzog, Julie Martin, Dianna 15 Mull, and Jack Warner. These claims are DISMISSED with prejudice. 16 • Summary judgment is DENIED as to the Section 1983 claims against Defendant 17 Jacob Miller. 18 • Summary Judgment is DENIED as to the negligence claims against the State of 19 Washington Department of Corrections. 20 • Plaintiffs are further ORDERED to show cause within fourteen days why the 21 Court should not dismiss the John Doe defendants sua sponte, as Plaintiffs have 22 not put forward any evidence that they have ascertained the identity of additional 23 defendants through discovery. See Wakefield v. Thompson, 177 F.3d 1160, 1163 24 (9th Cir. 1999). 1 Dated this 26th day of August, 2024. 2 A 3 Tiffany M. Cartwright 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24