Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01107-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 04-cv-1107-REB-CBS ELIZABETH MEDINA, Individually as mother of and as Personal Representative of the Estate of LUCAS de HERRERA, and, MARGARITO de HERRERA, Individually as father of LUCAS de HERRERA, Plaintiffs, vs. BOARD OF COUNTY COMMISSIONERS, ALAMOSA COUNTY, COLORADO, in both their individual capacities; SHERIFF DAVID STONG, in his individual capacity; UNDERSHERIFF JOHN BIANCA, in his individual capacity; SGT. RON GOODMAN, in his individual capacity; DEPUTY LISA BENEVIDEZ, in her individual capacity; CORPORAL GARY THOMAS, in his individual capacity. Defendants.

DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants, BOARD OF COUNTY COMMISSIONERS OF ALAMOSA COUNTY, SHERIFF DAVID STONG, UNDERSHERIFF JOHN BIANCA, SGT. RON GOODMAN, DEPUTY LISA BENEVIDEZ and CORPORAL GARY THOMAS, by and through their attorneys, Jonathan A. Cross, and Sean J. Lane of Cross & Liechty, P.C., hereby submit their Reply in Support of their Motion for Summary Judgment. As grounds therefor, Defendants state as follows:

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I.

REPLY CONCERNING PLAINTIFFS' STATEMENT OF FACTS

With respect to Plaintiffs' response in the matter of Defendants' recitation of material facts and Plaintiffs' statement of additional facts, Defendants' reply as follows: 24. 25. 26. 27. 28. Admitted. Admitted. Admitted that Plaintiff Medina testified to these alleged facts. Admitted. Admitted that it is uncommon for inmates to self-report their mental illness, or to

tell jail staff they are suicidal during the initial inmate intake ("booking") process. Defendant Stong's statements in this portion of his deposition were related to the booking process. See Plaintiff's Exhibit 3, at p. 30:12 ­ 25; 31:1 ­ 25; p. 32:1 ­ 25; p. 33:1 ­ 22. 29. 30. 31. 32. Admitted. Admitted. Admitted. Admitted that inmate J.D. Haefli hung himself in April of 2002. He used the

same mechanism of "hanging", but Mr. Haefli hung himself from a different device in the cell called a "breakaway hook." See Id., at p. 95:9 ­ 16; see Exhibit H, at 45:11 ­ 17. The hook was designed to fold if anything heavy is hung from it. However, Mr. Haefli caused the hook to malfunction by threading a garment behind the hook. See Exhibit H, at 45:18 ­ 23. 33. Admitted that the bookshelves in the cells were removed after Lucas de Herrera's

death. Sheriff Stong stated at his deposition that inmates could keep their books on the floor, but did not testify that they are "unnecessary". He did not remove the bookshelves in the jail cells

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after Mr. Haefli's death, but Mr. Haefli did not hang himself from the bookshelf located in his cell. Mr. Haefli hung himself from a "breakaway hook" that was located within the cell. See Plaintiffs' Exhibit 3, at 97:1 ­ 7; Exhibit H, at 45:11 - 23. II. a. ARGUMENT

Plaintiffs have failed to present evidence sufficient to establish deliberate indifference

to a serious medical need on the part of the Defendants. The material facts in this case are not in dispute and are summarized as follows. Lucas de Herrera (hereinafter, the "Decedent") had been on suicide watch for several days approximately one month before his actual suicide but a healthcare professional determined at that time that Decedent was actually not suicidal. See Brief in Support of Motion for Summary Judgment (hereinafter, the "Brief"), January 31, 2006, at Statement of Facts #4 - #7. The opinion was that Decedent was trying to manipulate the system in order to secure his transfer from the jail to another facility. Approximately five weeks later, Decedent asked to see a mental-health counselor. His mother had also tried to secure him a visit from a local Catholic priest. In neither of these instances was the reason for the consultation because of any suicidal tendency. Obviously, prisoners can be distraught for a variety of reasons without raising the suspicion of a potential suicide. This second mental-health visit did not occur for unknown reasons, and Plaintiffs assert that because the jail officer failed to follow-up on this request, that this demonstrates deliberate indifference on the deputy's part. Although there were three days between this second request and Decedent's ultimate suicide, Decedent asked no questions regarding why there was a delay in

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the requested consultation, nor did he submit any subsequent requests to see a counselor over those three days. Finally, although due to disciplinary reasons Decedent's visitation rights were curtailed (to include visits with his mother), his mother still had daily contact with Decedent via telephone; she had no inclination that Decedent was suicidal in the days before his ultimate suicide. See Exhibit B, at p. 157:20 ­ 25, 160:3 ­ 9, 160:10 ­ 11. There are several cases in the Tenth Circuit that analyze the issue of liability for inmate suicides occurring in jails. See Barrie v. Grand County, 119 F.3d 862 (10th Cir. 1997); Hocker v. Walsh, 22 F.3d 995 (10th Cir. 1994); Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985). These cases establish the standard that, in order for a defendant to be liable for an inmate suicide pursuant to 42 U.S.C. § 1983, a defendant must be: 1) acting "under color of state law" (which Defendants admit); 2) acting or failing to act in a deliberately indifferent fashion; 3) to [Lucas de Herrera's] serious medical need. Judgment. Barrie, Hocker, and Garcia all stand for the principle that defendant law enforcement officers should not be held liable for the death of an inmate where they "...did not know, and had no reason to know, of a specific risk that [decedent] would commit suicide." Hocker, 22 F.3d at 998 ­ 99 (emphasis added). Further, to establish deliberate indifference, a plaintiff must show that "the detainee exhibited strong signs of suicidal tendencies, that the jail officials had actual knowledge of, or were willfully blind to, the specific risk that the detainee in question would commit suicide and that the jail officials then failed to take steps to address that known specific risk." Id., at 1000 (emphasis added). When one analyzes the case law in this area as a whole, it These cases support Defendants' Motion for Summary

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is clear that deliberate indifference represents a difficult burden for a plaintiff to establish, and that summary judgment is an appropriate remedy where a plaintiff fails in that burden. Plaintiff's argument boils down to two facts: (1) that Decedent had previously been placed on suicide watch on June 25, 2002; and (2) that Decedent asked for a mental-health counselor on July 24, 2002, because he claimed he was depressed. However, the first fact would have actually reduced, not enhanced, the deputies' suspicion of suicide. Following their training, deputies had Decedent examined when he complained of having suicidal thoughts on June 25, 2002. It turned out that their suspicions were incorrect in that Decedent was not suicidal according to a professional opinion, rendered by counselor Kristi Ninnemann of San Luis Valley Mental Health. Thus, this professional opinion informed the deputies that they were being too sensitive to presumed suicidal intent and that, if they were to learn from this mistake, they would decrease their sensitivity regarding Decedent in the future. Although Decedent asked for a mental-health counselor a second time, he only said he was depressed and exhibited no other characteristics of suicidal tendencies. Furthermore, the way in which the officers handled the first situation demonstrates that they were sensitive to Decedent's problems, which is exactly opposite of being deliberately indifferent to the issue. Ms. Kristi Ninnemann, a mental-health professional, reported to the jail following a request by deputies and informed them that Decedent was not suicidal. See Brief, at #5 and #6. It was her professional opinion that Decedent was simply acting suicidal in order to secure a transfer out of the jail. She further informed jail personnel that the minor scratches on his wrists did not require medical attention, although jail personnel requested medical assistance for him out of an abundance of caution. Id., at #6. Although Ms. Ninemann was of the opinion

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that Decedent was not suicidal, Decedent was placed on suicide watch anyway, partly on Ms. Ninnemann's recommendation that placing him on suicide watch would demonstrate to him how seriously all parties involved take a threat of suicide in the jail. See Deposition Exhibits 6 and 15. On July 2, 2002, Decedent's public defender asked that he be taken off of suicide watch. Mental health was once again called and again a trained mental-health professional verified that Decedent was still not a danger to himself and could be taken off of suicide watch and returned to a normal cell. See Brief, at #9. "In a case where a prisoner alleges that inadequate or delayed medical care violated their Eighth Amendment rights, it has been established that `[p]rison officials violate the Eighth Amendment [only] when they are deliberately indifferent to the serious medical needs of prisoners in their custody." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quoting Perkins v. Kansas Dep't. of Corrections, 165 F.3d 803, 811 (10th Cir. 1999)). "Eighth

Amendment claims alleging inadequate or delayed medical care thus involve both an objective and a subjective component, such that we must determine both `whether the deprivation is sufficiently serious' and `whether the [government] official acted with a sufficiently culpable state of mind.'" Id. (quoting Perkins, 165 F.3d at 809.). A medical need is "sufficiently serious" if the medical condition at issue "has been diagnosed by a physician as mandating treatment or ... is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Plaintiffs rely upon the June 25, 2002, incident to establish both that Defendants were aware that Decedent posed a substantial risk of suicide (the objective component), and that knowing this, that they were deliberately indifferent to this obvious need (the subjective

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component). However, the undisputed facts establish that jail personnel had been informed that Decedent was not a suicide risk on June 25, 2002. In fact, jail personnel were informed again on July 2, 2002, that Lucas was still not a suicide risk, and should be returned to a standard cell. Id. On each prior occasion that a professional mental-health worker had contact with Decedent, they had informed jail personnel that he was not at risk for suicide and that he had only been acting suicidal in a failed attempt to be transferred from the jail. In this case Defendants faced a situation where not only was Decedent's condition not obvious to a lay person, it had actually been rebutted by a mental-health professional. In his July 24, 2002, request to see a mental-health counselor, Lucas did not inform jail personnel that he was contemplating suicide, as he had done the prior month. Instead Decedent's kite was a simple request to see mental health. This kite was not sufficient to place Defendants on notice that there was a specific risk that Lucas was contemplating suicide. Jail deputies, including Defendant Benevidez, had spoken to Lucas that same evening and noticed no change in his behavior. See Brief, at #12. In other words, Plaintiffs' can neither establish that Lucas' need was "sufficiently serious", or that the failure to follow-up on the July 24, 2002, phone call to mental health evidences a "sufficiently culpable state of mind", given the obvious lack of an apparent serious medical need. See Oxendine, 241 F.3d at 1276. b. Plaintiffs have failed to establish that the individual Defendants are not entitled to

qualified immunity. "When a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to show the defendant is not entitled to immunity." Roska ex rel. Roska v. Sneddon, ___ F.3d ___, 2006 WL 302509 (10th Cir. 2006) (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.

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2001)). "To overcome a qualified immunity defense a plaintiff must first establish a violation of a constitutional or statutory right and then show that the right was clearly established." Id. (citing Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)). Plaintiffs are unable to establish that the individual Defendants in this case violated Decedent's constitutional or statutory rights, for the reasons stated above. Plaintiffs then argue various reasons why each of the individual Defendants should not be entitled to qualified immunity. However, Plaintiffs fail to address the key issues involved in this matter. It is not clearly established that a simple request to see mental health creates a sufficiently serious medical need, such that a failure follow-up on a phone call to a mental-health counselor evidences deliberate indifference. Certainly this is complicated by the fact that the incident upon which Plaintiffs rely to establish knowledge of Decedent's "serious medical condition" was one in which a trained mental-health professional actually told jail personnel that he was not a suicide risk. Effectively, Plaintiffs attempt to establish that Decedent had a right, under the Eighth Amendment, to have the individual Defendants intuit his serious medical need without any independent evidence of this condition. Plaintiffs are unable to provide any case law, from the 10th Circuit or otherwise, which establishes that the individual Defendants in this matter violated a "clearly established right." c. Sheriff Stong is not liable for a failure to properly train and supervise his deputies who

worked in the jail. Plaintiffs argue that Sheriff Stong is responsible for training and supervising those responsible for the provision of medical care and treatment to Alamosa County Jail Inmates. This is incorrect. Sheriff Stong is not a physical or mental-health professional. Deputies and

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other employees working in the jail are not physical or mental-health care professionals, and they are not responsible for the actual provision of medical care and treatment to jail inmates. However, they are responsible for monitoring inmates. The Eight Amendment requires that when a jail official observes an inmate with a "sufficiently serious medical need," the official must then act to secure appropriate treatment for the inmate. See Oxendine, 241 F.3d at 1276. That is what the Defendants in this matter were trained to do, and that is what they did in practice. When Decedent informed deputies that he was contemplating suicide on June 25, 2002, a mental-health professional was called. That mental-health professional advised that Decedent was not a suicide risk. However, Decedent was placed on suicide watch anyway, although mental-health counselor Ninnemann felt that he was "malingering" at that time. When Decedent made his request to see a counselor on July 24, 2002, he made no mention of feeling suicidal. Observations made by deputies, and even Decedent's mother, revealed no change in Decedent's behavior, and nothing that led them to believe he was suicidal. See Brief, at #11 and #12. The undisputed facts establish that, at the time of his death, jail officials knew only that Decedent had asked to see a mental health counselor, but not that he had a "serious medical need." Some of the Defendants also knew that Decedent had been seen by a mental health counselor in the past who had informed jail officials that he was not a suicide risk. Yet, Defendant Thomas called for a mental health counselor anyway, per his training. If Decedent had displayed a "serious medical need", one that had been diagnosed by a doctor or that was obvious even to a lay person, then perhaps Defendant Thomas' failure to follow-up on his phone call to mental health could have arguably represented an attitude of deliberate indifference. See Hunt, 199 F.3d at 1294. Though Decedent had put in a request to

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see a mental health counselor, the facts in this matter simply do not establish that the Defendants had any way of knowing about Decedent's serious medical need, which is what the Eighth Amendment requires in order to sustain a claim pursuant to 42 U.S.C. § 1983. Tragically, Lucas de Herrera committed suicide in the Alamosa County Jail. Unfortunately, he gave no warning signs that he presented a specific risk of suicide, and even a trained mental health worker had informed jail personnel that he was not a risk to himself. Defendants were following Sheriff Stong's constitutionally sufficient policies, and did not violate Lucas de Herrera's Eighth Amendment rights. WHEREFORE, for the foregoing reasons, Defendants respectfully request this Court grant Summary Judgment in favor of Defendants Board of County Commissioners of Alamosa County, Stong, Bianca, Goodman, Martinez, Benevidez and Thomas, dismiss all claims against Defendants, enter judgment on their behalf against Plaintiffs, award Defendants their costs and attorney's fees, and provide such other relief as the court deems proper. Respectfully submitted this 6th day of March, 2006.

By:

s/ Sean J. Lane Jonathan A. Cross Sean J. Lane CROSS & LIECHTY, P.C. 400 So. Colorado Blvd., Suite 900 Denver, Colorado 80246 Tel: (303) 333-4122 Email: [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on this March 6, 2006, a true and correct copy of the above and foregoing DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was, unless otherwise indicated, filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: David A. Lane, Esq. Marcel Krzystek, Esq. KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Suite 400 Denver, Colorado 80202 (Via Electronic Filing) Stefani Goldin, Esq. STEFANI GOLDIN LLC 125 S. Howe Street, Suite 890 Fort Collins, Colorado 80521 (Via Electronic Filing)

s/

Chupai Ho

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