Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil 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, v. Plaintiffs,

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; FORMER DEPUTY RICK MARTINEZ, in his individual capacity; DEPUTY LISA BENEVIDEZ, in her individual capacity; CORPORAL GARY THOMAS, in his individual capacity. Defendants. ______________________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiffs, by and through their counsel, David A. Lane and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, and Stefani Goldin, hereby respond to Defendants' Motion for Summary Judgment as follows: I. INTRODUCTION

Plaintiffs are the parents and personal representatives of the estate of Lucas de Herrera, who hung himself on July 27, 2002 while incarcerated at the Alamosa County Jail. Plaintiffs have brought suit against Alamosa County, as well as its Sheriff and several deputies, alleging that Defendants' conduct preceding Lucas's death constituted a deliberate indifference to his serious mental health needs which ultimately resulted in Lucas's suicide. Specifically,

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Defendants marginalized the significance of Lucas's prior suicide attempt, in which Lucas attempted to cut his wrists only one month prior to his suicide by hanging. In addition, Defendants failed to follow-up and ensure that Lucas received the mental health counseling which he specifically requested approximately three days before his suicide. Defendants also refused Lucas access to clergy because his priest was not on Defendants' "approved" clergy list. Finally, notwithstanding their awareness of Lucas' prior suicide attempt and his request for counseling and clergy, Defendants kept Lucas in an ordinary cell containing bedsheets and a bookshelf. Defendants were fully aware that the bookshelf/bedsheet combination was a danger to suicidal inmates because, only three months prior, another inmate hung himself by employing nearly the same method. Nevertheless, Defendants placed Lucas into such a cell. On July 27, 2002, Lucas hung himself by attaching the bedsheet to the bookshelf, tying the bedsheet around his neck, and hanging himself. Those facts, which are more fully detailed below, create a genuine issue of material fact with respect to whether or not Defendants were deliberately indifferent to Lucas' known and serious mental health needs. They also create a genuine issue of material fact supporting Plaintiffs' allegation that the Sheriff's failure to train his staff with respect to the appropriate handling of potentially suicidal inmates constitutes a separate actionable constitutional violation. Finally, because it was clearly established that jail staff must provide adequate medical care to inmates in their charge, Defendants are not entitled to qualified immunity. II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if the admissible evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). This Court must also correctly apply the substantive law.

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See Applied Genetics Int'l, Inc. v. Fist Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). In both reviewing the evidence for disputed issues of material facts and applying applicable law, this Court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Thomas v. International Business Machines, 48 P.3d 478, 484 (10th Cir. 1995). A fact is "material" if, under governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1189 (10th Cir. 2000). "The burden of showing that no genuine issue of material facts exists is borne by the moving party." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). "This court draws all reasonable inferences in favor of the nonmoving party." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1189 "The nonmovant is given `wide berth to prove a factual controversy exists." Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002), citing Jeffries v. Kansas, Dep't of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir. 1998). Only when the moving party meets its initial burden does the burden of producing evidence of a disputed issue of material fact shift to the nonmoving party. Id. The court is not permitted to weigh the evidence, but instead determines "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kansas City Power & Light Co., 1 F.3d 976,

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980 (10th Cir. 1993); Jeffries v. State of Kansas, Dept. of Social and Rehab. Services, 147 F. 3d at 1228. III. ARGUMENT

Plaintiffs agree that most of the material facts in this case are not in dispute. Those facts, however, do not establish that Defendants are entitled to judgment as a matter of law. To the contrary, the facts establish triable issues with respect to 1) whether or not Defendants exhibited deliberate indifference to Lucas de Herrera's serious medical (mental health) needs, and 2) whether Sheriff Stong failed to appropriately train and supervise his staff, thereby resulting in such deliberate indifference leading to Lucas' death. Consequently, Defendants' Motion for Summary Judgment must be denied. A. DEFENDANTS' CONDUCT CONSTITUTED A DELIBERATE INDIFFERENCE TO LUCAS DE HERRERA'S SERIOUS MEDICAL NEEDS AND A VIOLATION OF HIS EIGHTH AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

Plaintiffs agree with the elements they must establish in order to prevail on their Eighth Amendment deliberate indifference claim. In order to establish such an Eighth Amendment violation, Plaintiffs must prove, by a preponderance of the evidence, that Defendants were deliberately indifferent to Lucas de Herrera's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The constitutional duty to provide necessary medical care to inmates includes psychological or psychiatric care. See Riddle. v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980). Although a "complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment," a valid Eighth Amendment claim is established by showing "acts or

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omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. With respect to Defendants' recitation of facts they assert to be material to this claim, Plaintiffs respond as follows: 1. 2. 3. Admitted. Admitted. Admitted that Lucas de Herrera was accused of being involved in an

escape attempt with Jimmy Gollihugh. Lucas de Herrera denied participating in the escape attempt, but stated that he would "own up to it" because it was not fair for the other inmates to lose their phone and television privileges. See Defendants' Deposition Exhibit 10. 4. 5. 6. 7. Admitted. Admitted. Admitted. Admitted that Lucas de Herrera was placed on suicide watch after he had

cut his wrists with a pencil on June 25, 2002. Sheriff Stong was aware that Lucas de Herrera "scratched" his wrists with a pencil on that date. Exhibit 3, Stong depo., 57:5 ­ 20. 8. 9. 10. Admitted. Admitted. Admitted. In his kite, Lucas de Herrera also wrote that he "would to speak

with someone from mental health as soon as possible because I've bee (sic) feeling depressed for the past couple of days." Defendants' Deposition Exhibit 2. 11. 12. Admitted. Admitted.

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13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

Admitted. Admitted. Admitted. Admitted. Admitted that deputies are so trained. Admitted. Admitted. Admitted. Admitted. Admitted. However, "lockdown" is not the same as suicide watch. See

Defendant's Exhibit E, Stong depo., 84:19 ­ 85:6. 23. Admitted.

The following additional facts are material to Plaintiffs' claims: 24. After leaving a voicemail with the San Luis Valley Comprehensive Mental

Health Center, Defendant Thomas never followed up in order to determine whether or not Lucas had in fact been seen or provided treatment. Exhibit 5, Thomas depo., 21:9 ­ 22:2. Defendant Thomas was aware that Lucas de Herrera had "scratched" his wrists in June of 2002. Exhibit 5, Thomas depo., 38:17 ­ 21. 25. Defendant Goodman, who was standing next to Defendant Thomas when

Thomas left the message for mental health, testified that his duty had been done once the message had been left for mental health. Exhibit 5, Thomas depo., 20:24 ­ 21:1; Exhibit 6, Goodman depo., 49:24 ­ 50:3.

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26.

While incarcerated at the Alamosa County Jail, Lucas de Herrera was

experiencing problems with drug withdrawal as well as problems with deputies. Exhibit 2, Medina depo., 145:1 ­ 12. Plaintiff Elizabeth Medina, Lucas' mother, spoke to Defendant Goodman within two weeks of Lucas' suicide and advised him that Lucas de Herrera needed help, that he was having a hard time as a result of his drug withdrawal, and that he needed some visitation, including visits from clergy. Id. at 197:17 ­ 200:11; 203:10 ­ 15. Defendant Goodman told Ms. Medina that there was nothing he could do. Id. at 200:17 ­ 23. 27. Defendant Goodman acknowledged that he had spoken with Plaintiff

Medina, and that she had asked if "Father Pat" could visit with Lucas de Herrera. Exhibit 6, Goodman depo., 60:14 ­ 21. Goodman advised Medina that if "Father Pat" was not on the "ministerial list" that he could not visit Lucas. Id. 28. It is uncommon for inmates to self-report their mental illness, and inmates

generally do not tell jail staff that they are suicidal. Exhibit 3, Stong depo., 33:14 ­ 19; 56:2 19. 29. In order to determine which inmates may be suicidal, staff need to watch

for warning signs. A prior suicide attempt might be a warning sign. Exhibit 3, Stong depo, 56:20 ­ 57:4. 30. An inmate that is on suicide watch is checked by staff every 15 minutes,

four times as often as other inmates. Exhibit 3, Stong depo., 39:10 ­ 23. Lucas de Herrera was not on suicide watch the night that he died. Id., 39:7 ­ 8. 31. In addition to two suicides, there have been three or four suicide attempts

at the Alamosa County Jail while Defendant Stong has been the sheriff. Exhibit 3, Stong depo.,

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40:20 ­ 23. All of the suicide attempts involved the inmate hanging themselves with a bedsheet. Id. at 41:2 - 16. 32. Another inmate at the Alamosa County Jail, J.D. Haefeli, hung himself in

April of 2002, approximately three months before Lucas de Herrera's suicide. Exhibit 4, Westerman depo., 151:12 ­ 152:4. Haefeli committed suicide by essentially the same mechanism as Lucas de Herrera; he tied off a bedsheet to a breakaway hook and a shelf. Exhibit 3, Stong depo., 95:9 - 16. 33. The bookselves that Lucas de Herrera used to hang himself were removed

after his suicide. Exhibit 3, Stong depo., 92:20 ­ 93:21. Inmates do not need bookshelves in their cells. Exhibit 3, Stong depo., 96:2 ­ 8. 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); Daniels v. Glase, 1999 U.S. App. LEXIS 18887 (10th Cir. 1999) (unpublished, Exhibit 1). Those cases establish that Defendants have failed to meet their burden of establishing that they are entitled to the "drastic remedy" of judgment as a matter of law. In Barrie, after concluding that the "deliberate indifference" standard applied in the jail suicide context, the court held that the plaintiffs had failed to present evidence sufficient to meet that standard. See Barrie v. Grand County, 119 F.3d at 869. Although the case contains little analysis, the facts were as follows: The decedent was arrested at approximately 6:00 p.m. and arrived at the jail an hour later. See id. at 863. During the booking process, the decedent was asked if he had ever tried to hurt himself in the past, attempt suicide, or if he was contemplating suicide. See id. at 865. Decedent answered "no." See id at 865. A half hour after arriving at the

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jail, decedent was placed into the "drunk tank" and was permitted to retain possession of the clothes he was wearing at the time of his arrest, including a pair of sweat pants containing a 38 inch long cloth cord. See id at 863. At around 11:00 p.m., decedent responded "alright" when asked how he was doing by a deputy. See id. at 865. Deputies observed the decedent alive at around 1:00 a.m. See id. at 864. However, an hour later, a deputy found the decedent dead and hanging from the 38 inch sweat pants draw cord. See id. In Hocker, the Tenth Circuit also affirmed the grant of summary judgment in favor of the defendants. It did so, however, because the decedent "did not exhibit a serious medical need and because the Detention Center staff did not know and had no reason to know of the specific risk that [decedent] would commit suicide." Hocker v. Walsh, 22 F.3d at 998 ­ 99. In support of its conclusion, the court noted that decedent had shown no signs of suicidal tendencies until she was found hanging in her cell. See id. at 997. The decedent was transported to the detention facility on the morning of May 11, 1989, and was found hanging in her cell at 6:30 p.m. on May 13. See id. at 997. Citing several cases, the Tenth Circuit noted that a plaintiff could "establish deliberate indifference in a jail suicide case by showing 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, citing Bowen v. City of Manchester, 966 F.2d 13 (1st Cir. 1992); Barber v. City of Salem, Ohio, 953 F.2d 232 (6th Cir. 1992); Bell v. Stigers, 937 F.2d 1340 (8th Cir. 1991); Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990). In Hocker, however, "no facts suggest[ed] that the Detention Center staff had knowledge of the specific risk that [decedent] would commit suicide." Id.

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In Daniels, the Tenth Circuit reversed the trial court's denial of summary judgment and qualified immunity to the sheriff as a result of a jail suicide. See Daniels at 16, 18 (Exhibit 1). There, the decedent was arrested at 6:00 a.m. on March 2, 1996. See id. at 3. At the time of his booking, a deputy instructed decedent to remove his belt, to which he responded: "There's other ways to kill yourself." See id. at 4. The deputy followed up on the comment by asking if the decedent was suicidal, to which he responded: "No." See id. During the booking process, the deputy failed to fill out a form which included an evaluation of the inmate's physical and mental condition. See id. Decedent was found hanging by his T-shirt within two hours of his arrest. See id. at 5. In affirming the grant of summary judgment, the court noted that the facts only established that 1) an intoxicated but conscious inmate was booked into jail, 2) that the inmate made a remark suggesting that the thought of suicide had crossed his mind, but, when specifically asked if he was suicidal, he specifically stated, "no"; 3) that a medical evaluation form was not filled out for the inmate, and that this was the only time of which the sheriff was aware that there was a failure to fill out the form. See id. at 14 ­ 15. The plaintiff identified "nothing specific that the completion of the form would have revealed about [decedent] to alert jail personnel that he was a serious suicide risk." Id. at 15. The court twice noted that there had been no prior suicide attempts nor successful suicides at the jail. See id. at 6, 15. Finally, in Garcia, the Tenth Circuit affirmed a jury award to the widow and parents of an inmate who died at the Salt Lake County Jail after an overdose of drugs. See Garcia v. Salt Lake County, 768 F.2d at 305. There, decedent Ronald Garcia was taken to the hospital after being involved in an auto accident and being charged with driving under the influence. See id. After being left in the examining room, Garcia ingested an overdose of barbiturate and escaped from the hospital. See id. Garcia was then found by police officers passed out in the ambulance

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entrance to the hospital and examined by a medical doctor, who had no knowledge that Garcia had ingested the drugs. See id. After being told that Garcia could be observed at the jail, the doctor approved his transfer to the jail, where he arrived at 3:43 p.m. See id. The jail medic directed that Garcia be observed every 10 to 20 minutes, and he was checked by deputies approximately every 30 minutes. See id. at 305 ­ 6. At 8:30, Garcia was seen unconscious, and at 10:15 p.m., he was found dead. See id. at 306. The Tenth Circuit concluded that the jury's finding against the county was supported by sufficient evidence of gross deficiencies and deliberate indifference in staffing and procedures to monitor persons admitted to the jail in an unconscious condition who were suspected of being intoxicated, and that such deficiencies and indifference cause a violation of the inmate's constitutional rights. See id. at 308. The commonality in Barrie, Hocker, and Daniels is that, in each case, the defendants had no (or exceedingly little) notice that the inmate was suicidal or suffering from any mental health issue. In each of those cases, the inmate decedents had been incarcerated for such short periods of time that jail staff never had much opportunity to familiarize themselves with the inmates' mental health status. For example, in Daniels, the inmate-decedent committed suicide within two hours after being taken into custody. In Barrie, the inmate-decedent committed suicide within eight hours of his arrest, and in Hocker, the inmate-decedent committed suicide within two and a half days. Furthermore, with the exception of the "There's other ways to kill yourself" comment in Daniels, none of the inmates gave any indication whatsoever that they were at risk for committing suicide. By contrast, Lucas de Herrera had been in the Defendants' custody for approximately six weeks and had made his depression and suicidal ideations known. Defendants had been made aware of Lucas' deteriorating and suicidal state at least one month prior to his suicide.

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Defendants acknowledge that, approximately one month before his suicide, Lucas de Herrera advised a jail deputy that he was having "crazy thoughts in his head" and that he was thinking of killing himself. See Brief in Support of Motion for Summary Judgment, p. 6, Statement of Fact #4. Although Defendants characterize the self-inflicted injuries to Lucas' wrists as "scratched," the cuts were sufficiently serious to require medical attention. See id. at 6, 11. Defendant Goodman was specifically advised by Lucas de Herrera's mother that he was experiencing problems with drug withdrawal as well as problems with deputies. Exhibit 2, Medina depo., 145:1 ­ 12. Ms. Medina also advised Defendant Goodman that Lucas needed visitation, including a visit from clergy. Id. at 197:17 ­ 200:23:15; 203:10 ­ 15. Defendant Goodman acknowledged that he had spoken with Plaintiff Medina, and that she had asked if "Father Pat" could visit with Lucas de Herrera. Exhibit 6, Goodman depo., 60:14 ­ 21. However, Goodman advised Medina that if "Father Pat" was not on the "ministerial list" that he could not visit Lucas. Id. Although Defendant Goodman was made aware of Lucas' problems and requests for clergy within two weeks of Lucas' suicide, he nevertheless told Ms. Medina that there was nothing he could do.1 Exhibit 2, Medina depo., at 200:17 ­ 23. On July 24, 2002, Lucas de Herrera submitted a kite in which he requested mental health counseling "as soon as possible" and "today" because he was feeling depressed. The fact that Defendant Thomas responded to this kite by leaving a voicemail at the mental health center does not remove this case from the realm of deliberate indifference. After leaving a voicemail with the San Luis Valley Comprehensive Mental Health Center, Defendant Thomas never followed up in order to determine whether or not Lucas had in fact been seen or provided treatment.

Defendants note the fact that Lucas' mother did not know that her son was suicidal. See Brief in Support of Motion for Summary Judgment at 10 ­ 11. However, what notice Defendants had of Lucas' mental state, and what they did in response, is the relevant inquiry. This is particularly true in this case because, as Defendants admit, they had eliminated Lucas' ability to visit with his mother, thereby limiting her ability to assess his mental condition.

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Exhibit 5, Thomas depo., 21:9 ­ 22:2. Defendant Goodman, who was standing next to Defendant Thomas when Thomas left the message for mental health, testified that his duty had been done once the message had been left for mental health. Exhibit 5, Thomas depo., 20:24 ­ 21:1; Exhibit 6, Goodman depo., 49:24 ­ 50:3. Defendant Benavidez similarly did nothing other that write that Lucas de Herrera could not handle his punishment and that he was seeking mental health counseling into a pass-on log. That failure to follow up created a delay that a reasonable jury could find resulted in Lucas de Herrera's suicide. Whether the length of delay constitutes deliberate indifference varies from case to case, a delay in providing treatment constitutes a violation of the Eighth Amendment "if there has been deliberate indifference which results in substantial harm." Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). See also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (six-hour delay in medical treatment for "a serious and painful broken foot was sufficient to state a constitutional claim"); Thomas v. Town of Davie, 847 F.2d 771, 772 (11th Cir.1988) (automobile accident where the individual was in obvious need of immediate medical attention because of his medically emergent and deteriorating condition); H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080, 1086-87 (11th Cir.1986) (three-day delay in medical treatment for shoulder injury was "reckless disregard" for detainee's serious medical need and was a constitutional violation); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 702 (11th Cir.1985) (valid constitutional claim where inmate died of leukemia four months after complaining of "serious" medical problems, including swollen ankles, inability to sleep, chills, hyperventilation, severe pain in back and right leg, and double vision, and county jail defendants made no arrangements for a doctor's examination until compelled to do so by two court orders); Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir.1985) (one-and-a-halfinch cut over detainee's eye bleeding for two and a half hours before sutured at a hospital);

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Hughes v. Noble, 295 F.2d 495, 496 (5th Cir.1961) (per curiam) (following automobile accident, individual jailed for thirteen hours with broken neck and forced to endure "severe pain" despite "repeated requests for medical attention"); Cooper v. Dyke, 814 F.2d 941, 945-46 (4th Cir.1987) (detainee's gunshot wound required immediate medical attention and delay in providing it caused shock and extensive internal bleeding). If either Thomas or Goodman had followed up on that voicemail, they would have learned that Lucas had not been seen or treated. Because it is uncommon for inmates to self-report their mental illness, and because inmates generally do not tell jail staff that they are suicidal, jail staff need to watch for warning signs. Exhibit 3, Stong depo., 33:14 ­ 17; 56:1 - 19. A prior suicide attempt might be such a warning sign. Exhibit 3, Stong depo, 56:20 ­ 57:4. Notwithstanding the fact that Lucas was self-reporting mental illness, and notwithstanding his prior suicide attempt, failure to either follow up on Lucas' request or place him on suicide watch constituted deliberate indifference to his obvious and serious mental health needs. Unlike Daniels (where the court twice noted that there had been no prior suicide attempts at the jail), there have been three or four suicide attempts at the Alamosa County Jail while Defendant Stong has been the sheriff, and all of the suicide attempts involved the inmates hanging themselves with bedsheets. Exhibit 3, Stong depo., 40:20 ­ 23; 41:2 - 16. More importantly, however, another inmate at the Alamosa County Jail, J.D. Haefeli, hung himself in April of 2002, approximately three months before Lucas de Herrera's suicide. Exhibit 4, Westerman depo., 151:12 ­ 152:4. Haefeli committed suicide by essentially the same mechanism as Lucas de Herrera; he tied off a bedsheet to a breakaway hook and a shelf. Exhibit 3, Stong depo., 95:9 - 16. Despite Haefeli's suicide only three months prior, and despite Lucas' prior suicide attempt in late June of 2002, Lucas was not placed on suicide watch, where he

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would have been observed by staff four times an hour. In fact, like Haefeli, he was held in a cell with bookshelves and a bedsheet, which he used to hang himself in a manner functionally identical to the method employed by Haefeli only three months prior. Those bookshelves (which Defendant Stong admits are unnecessary) were not removed until after Lucas' suicide. Exhibit 3, Stong depo., 96:2 ­ 8. In sum, Defendants were aware that Lucas de Herrera was suffering from suicidal ideations and that he had cut his wrists approximately one month before his suicide. Although Lucas de Herrera requested a mental health counselor "today" and "as soon as possible" approximately three days before his suicide, he was not placed on suicide watch, and, other than leaving a voice message at mental health, no Defendant did anything to assist Lucas. On such facts, Plaintiffs have established "deliberate indifference in a jail suicide case by showing 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." Hocker v. Walsh, 22 F.3d at 1000. Consequently, Defendants' Motion for Summary Judgment must be denied. B. SHERIFF STONG FAILED TO PROPERLY TRAIN AND SUPERVISE THOSE RESPONSIBLE FOR THE PROVISION OF MEDICAL CARE AND TREATMENT TO ALAMOSA COUNTY JAIL INMATES

Sheriff Stong may be held liable for failure to train and supervise his employees. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Even if a policy is deemed to be constitutional, a government entity may still be liable if an employee has not been properly trained. "The plaintiff does not need to present explicit evidence that the chief of police was personally aware of and chose to ignore the problem." Brown v. Gray, 227 F.3d

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1278, 1289 (10th Cir. 2000). "Rather, plaintiff must show that a policymaker, which could be the chief of police was deliberately indifferent to the problem." Id. Whether or not Sheriff Stong failed to properly train and supervise staff with respect to the proper care and treatment of mentally ill inmates at the Alamosa County Jail is therefore a question of fact for the jury and such claim is not subject to summary adjudication. Sheriff Stong was aware that Luca de Herrera had "scratched" his wrists in June of 2002, thereby placing him on notice of Lucas mental health problems and suicidal ideations. Sheriff Stong was also aware that inmate J.D. Haefeli committed suicide by essentially the same mechanism as Lucas de Herrera only three months prior. Exhibit 3, Stong depo., 95:9 - 16. Nevertheless, notwithstanding the fact and method of Haefeli's suicide, Stong did not take appropriate measures to protect suicidal inmates, specifically, removing the bookshelves and/or bedsheets from the cells of inmates with mental health problems. Id. Sheriff Stong did not do so notwithstanding the fact inmates do not need bookshelves in their cells. Exhibit 3, Stong depo., 96:2 ­ 8. [I]n light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. n10 In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412, 428 (1989). Given Sheriff Stong's knowledge of the need for additional preventive measures after the Haefeli suicide, and given his knowledge of Lucas de Herrera's suicidal state, his failure to take action constituted a failure to train and a policy or custom of deliberate indifference to the known and obvious serious medical needs of inmates.

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C.

DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY

Defendants acknowledge that it is clearly established that jail officers must provide adequate medical care to inmates in their charge. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1316 (10th Cir. 2002). Nevertheless, the United States Supreme Court has recognized the tension between providing an important remedy for individuals injured by governmental officials' abuse of authority and subjecting such officials to the difficulties of litigation. See Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In order to balance these competing interests, courts recognize the affirmative defense of qualified immunity, which protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Defendants again attempt to argue that the "Board of County Commissioners had no direct contact with the decedent" and that they "have no supervisory authority over the Jail, or any employee of the Sheriff." See Brief in Support of Motion for Summary Judgment, p. 13. This is the same argument that Defendants raised in their Motion to Dismiss and their Motion for Reconsideration, which argument has twice been unequivocally rejected by this Court. See Order Denying Motion to Dismiss [32] dated June 29, 2005 and Order Denying Defendants' Motion to Reconsider Ruling on Defendant Board of County Commissioners, Alamosa County, Colorado's Motion to Dismiss [35] dated July 27, 2005. Defendant Sheriff Stong was aware of the fact that Lucas had cut his wrists one month prior to his suicide. Defendant Stong was also aware that inmate Haefeli hung himself in his cell using a breakaway hook, bookshelves, and a bedsheet. Nevertheless, Sheriff Stong took no actions to ensure the safety of future suicidal inmates, and a suicidal Lucas de Herrera was

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placed into a cell containing bookshelves and a bedsheet. Neither Sheriff Stong nor his staff followed up on Lucas de Herrera's urgent request for mental health counseling submitted on July 24, 2002, three days before his suicide. Furthermore, as is briefed above Defendant Stong failed to properly train his staff with respect to the care of mentally ill inmates, particularly after the Haefeli suicide. Sheriff Stong is not entitled to qualified immunity. On the morning of July 24, 2002, Defendants Benavidez, Thomas, and Goodman were aware that Lucas de Herrera had requested mental health counseling "today" and "as soon as possible." In response to Lucas' kite, Defendant Benavidez did not call mental health or make further inquiry of Lucas, instead writing in a pass on log that "[t]he boys in lockdown cannot handle their punishment and put in a request to see mental because they need counseling. If you get a chance, can you see if mental health wants to talk to them?" In response to the kite and pass on log, the only thing Defendant Thomas did was leave a voicemail at mental health while Defendant Goodman stood by watching. Neither Defendant followed up with respect to whether or not Lucas de Herrera was ever seen or treated by mental health. In addition, Defendant Goodman said and did nothing notwithstanding his prior conversation with Lucas de Herrera's mother in which she advised him of Lucas' problems with drug withdrawal and his request for visitation and clergy. Consequently, Defendants Benavidez, Thomas, and Goodman are not entitled to qualified immunity. Even in the event that this Court holds that one or more Defendants are entitled to qualified immunity, the scope of that immunity is limited. "[I]t is essential to recognize that because the defense of qualified immunity is limited to particular claims against particular individuals, the corresponding protection against burdensome discovery is also limited." Rome v. Romero, 225 F.R.D. 640, 643 (D.Colo. 2004) (Krieger, J.) Specifically, "[t]he defense is

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available only to individual government officials, not governmental entities." Id., citing Owen v. City of Independence, 445 U.S. 622, 63 L.Ed. 2d 673, 100 S.Ct. 1398 (1980). Furthermore, the defense "is applicable only against claims for monetary damages, and has no application to claims for declaratory or injunctive relief." Id., citing Meiners v. University of Kansas, 359 F.3d 1222, 1233 n.3 (10th Cir. 2004). "Finally, the doctrine is applicable only to claims against officers in their individual capacities; official-capacity claims, being the equivalent of a claim against an entity, are not subject to qualified immunity." Id., citing Meiners, supra. Again, Plaintiffs have established "deliberate indifference in a jail suicide case by showing 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." Hocker v. Walsh, 22 F.3d at 1000. Consequently, Defendants' assertion of qualified immunity must fail. V. CONCLUSION

For all of the above and foregoing reasons, Plaintiffs respectfully requests that Defendants' Motion for Summary Judgment be DENIED. Respectfully submitted this 20th day of February, 2006. KILLMER, LANE & NEWMAN LLP /s/ Marcel Krzystek David A. Lane Marcel Krzystek 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 Stephanie Goldin, L.L.C.

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125 S. Howe Street, Suite 401 Fort Collins, Colorado 80521 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on 20th day of February, 2006, I electronically filed the foregoing PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, together with all associated Exhibits, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
· · · · ·

Jonathan Ariel Cross [email protected] [email protected] Stefani Goldin [email protected] [email protected] Marcel Krzystek [email protected] [email protected] David Arthur Lane [email protected] [email protected] Sean James Lane [email protected] [email protected]

and I hereby certify that I have mailed or served the document or paper to the following participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Elizabeth Medina deHerrera Margarito deHerrera P.O. Box 521 San Luis, Colorado 81152 (via U.S. mail) KILLMER, LANE & NEWMAN, LLP /s/ Marcel Krzystek _______________________________ Marcel Krzystek KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Suite 400 Denver, CO 80202 Telephone (303) 571-1000 [email protected]

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