Opinion
Case No. 1:03-CV-145.
March 3, 2005
OPINION
This matter is before the Court on Defendants Lee Gilman, Rufus Wright, Andrew Dyer, Donald Wise, Thomas Lauters, Larry Shepard, Ginger Bayne, Bruce Stout, Anthony VanderVlucht, Ricardo Dominguez, Thomas Dowker, Mark Fox, JoAnn Friedt, Michael Harvey, Shirley Whittaker, and Rina Becher's Rule 56(b) Motions for Summary Judgment. In three Motions for Summary Judgment, Defendants request the Court grant summary judgment in favor of each Defendant as to Plaintiff Bonita Clark-Murphy's Eighth Amendment claims. Defendants also request the Court grant summary judgment in favor of each Defendant because each Defendant is entitled to qualified immunity. Defendants finally request the Court dismiss Plaintiff's state claims pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). For the reasons which follow, Defendants Rufus Wright, Larry Shepard and Ricardo Dominguez are entitled to summary judgment and the claims against those Defendants shall be dismissed. Otherwise, the Motions will be denied.
The names of some Defendants have been spelled various ways throughout the pleadings. The Court will spell Defendants' names as they appear in Defendants' Motions for Summary Judgment.
I. Facts
The following statement of facts is a representation of the factual record interpreted in a light most favorable to Plaintiff, who is the non-moving party in this matter. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Before his death on July 4, 2002, Jeffrey Clark was an inmate at Bellamy Creek Correctional Facility ("Bellamy Creek") in Ionia, Michigan (Pl.'s Resp., Ex. M, Report of the Office of the Legislative Corrs. Ombudsman at 1) (hereinafter "Om. Report.") Defendants were all employees of the Michigan Department of Corrections ("MDOC") and at the time of Clark's death were employed at Bellamy Creek. (Defs.' Ans. to Compl.) Between June 29 and July 4, 2002, Bellamy Creek was under a heat alert, meaning the high temperatures exceeded 85 degrees (Om. Report at 1.)
On June 29, 2002, while in the prison dining hall, Clark either fell or sat down on the floor. Id. at 2. Defendants Dyer and Wise took Clark outside and laid him in the shade on the grass. Id. Kristine Wakefield came over and offered her assistance. Id. While outside, Clark began exhibiting "bizarre behavior," including barking like a dog, crying, staring blankly and tensing up "kind of like a stomach crunch." Id. Wakefield and the other officers kept watch over Clark until Captain Dyer thought Clark was "alert and responsive enough to understand." Id. at 3. Wakefield then ordered a wheelchair and took Clark back to his housing unit. Id. After Wakefield took Clark back to the housing unit, Defendant Lauters placed Clark in observation cell 4-232. Id. Defendant Lauters directed that Clark remain in this cell until a psychological assessment was completed. Id. at 3-4. Defendant Harvey may have called the Health Services Unit and asked Defendant Friedt to evaluate Clark on June 30, 2002. Id. at 4. Defendant Friedt testified that she did not receive Defendant Harvey's phone call. Id. Staff also informed Defendant Whittaker about Clark's behavior, and she directed them to prepare a mental health referral on Clark. Id. at 6.
On July 1, 2002, Defendants Bayne and Harvey attempted to move Clark to another cell but were unable to find one that was available. Id. When Harvey returned Clark to his observation cell, Clark attempted to hold his food slot hostage. Id. Harvey forced the slot closed and ordered the water shut off to Clark's cell. Id. Defendant Fox then evaluated Clark. At this evaluation, Clark requested that the water to his cell be restored. Id. at 8. Fox relayed this request to Harvey, who agreed to turn on the water. Id. It is unclear whether the water was turned on at this point. Later that day, Defendant Bayne informed Harvey of the "extreme heat," and Harvey ordered the water restored. Id. at 10. Once again, it is unclear whether the water was turned on at this time.
On July 2, Defendant Gilman issued a memorandum to staff with the following instruction: "Whenever the outside temperature reaches heat alert temperatures (85° or above), the cuff slots/ bottom cell slots are to be opened on all cells. If a prisoner misuses the open slot, i.e., throws items out of cell, places body parts through the slot, blocks slot, etc., the incident is to be properly documented and the slot closed. The slot is to remain closed until the end of the current heat alert." (Dkt. No. 49, Ex. E). That day, Defendant Harvey instructed Defendant Stout to turn the water on in Clark's cell, and Stout reported that he did so. (Om. Report at 12.) However, it is unclear whether the water was turned on at this time.
On July 3, 2002, Defendant Harvey asked Defendant Wright if he could move Clark and mentioned that Clark's water was off. Id. at 15. Wright responded, "It's 90 degrees, you can't have the water off." Id. Harvey claimed not to know who had turned the water off. Id. It is again unclear whether the water was turned on at that time.
Clark was found unresponsive in his cell late on July 3. Id. at 16. Various staff attempted to revive Clark, and their actions were videotaped by Aaron Cobb. Id. Clark died on July 4. The autopsy report listed dehydration as the cause of death. (Pl.'s Resp., Ex. O, at 1.) At the time of Clark's death, the temperature in his cell was estimated to be about 90 degrees and the water to his cell was off. (Om. Report at 1.) The water to Clark's cell appears to have been off for at least part of the day every day between June 30 and July 3. Id. at 20-21. The cell is equipped with a "big red light" that is lit whenever the water is turned off. Id. at 22. At various times between June 29 and July 3, Defendants Shepard, Dowker, Dominguez, Becker, Stout, VanderVlucht, and Bayne observed Clark while he was in his observation cell. (Om. Report).
On March 3, 2003, Plaintiff Bonita Clark-Murphy, Clark's Personal Representative, filed a Complaint against Defendants McKee, Gilman, Cobb, and Whittaker. After Defendants moved for a more definite statement, Plaintiff filed a First Amended Complaint on May 30, 2003, adding nineteen defendants. This First Amended Complaint alleged Defendants subjected Clark to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983. This First Amended Complaint also brought supplemental state claims for gross negligence, battery, and intentional infliction of emotional distress. The charges against Defendants Fairbank, Wakefield, Thelon, and Hoard were dropped after Plaintiff failed to serve them. Additionally, Plaintiff's claims against Defendants McKee, Cobb and Nelson were dismissed on November 24, 2003. The remaining Defendants now move for summary judgment.
II. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact. The party moving for summary judgment bears the initial burden of specifying the basis on which summary judgment should be granted and identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once this initial burden is met, the non-moving party has the burden of presenting specific facts, supported by the record, showing a genuine issue of material fact. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
III. Analysis
A. Deliberate Indifference
Plaintiff brings her claim under 42 U.S.C. § 1983, alleging a violation of the Eighth Amendment of the United States Constitution. Title 42 U.S.C. § 1983 prohibits any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" from depriving any United States citizen "of any rights, privileges, or immunities secured by the Constitution and laws." The Eighth Amendment of the Constitution states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (emphasis added). A prisoner must show that "prison officials acted with `deliberate indifference' towards conditions at the prison that created a substantial risk of harm" to prove a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). This test encompasses both an objective and a subjective component. The objective component requires the prisoner to show that the deprivation was "sufficiently serious." Id. The subjective component requires the prisoner to show that "prison officials had `a sufficiently culpable state of mind.'" Id. "In prison-conditions cases, that state of mind is one of `deliberate indifference' to inmate health or safety." Id.
A prison official acts with deliberate indifference to a substantial risk of serious harm when she or he knows of and "recklessly disregards" that risk. Farmer, 511 U.S. at 837. The test of deliberate indifference is subjective rather than objective. Id. at 840-41. Additionally, "the conduct for which liability attaches must be more culpable than mere negligence; it must demonstrate deliberateness tantamount to intent to punish." Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). An "official's failure to alleviate a significant risk that he should have perceived but did not, while not cause for commendation, cannot . . . be condemned as infliction of punishment." Farmer, 511 U.S. at 838. At the same time, "prison officials may be held liable for failure to remedy a risk of harm so obvious and substantial that the prison officials must have known about it." Id. at 858. "Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference." Horn, 22 F.3d at 660. However, an official may be found to have acted with deliberate indifference even if there is no evidence that he acted with a conscious intent to inflict pain. Id. A prison guard acts with deliberate indifference when he denies or delays a prisoner's access to medical care as to a serious medical need. See Farmer, 511 U.S. at 832-33, 835; Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Scicluna v. Wells, 345 F.3d 441, 447 (6th Cir. 2003). Therefore, "a prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering." Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir. 1991). See also Johnson v. Busby, 953 F.2d 349 (8th Cir. 1991).
In this case, Plaintiff alleges Defendants acted with deliberate indifference by depriving Clark of water, ventilation or medical care. In light of the death that occurred, Defendants have not challenged, for the purposes of their motion, that Plaintiff has established the objective component of her Eighth Amendment claim. (Defs.' Br. at 6.) Therefore, the primary issue is the subjective component and Plaintiff will be allowed to proceed with her claims against those Defendants who were subjectively aware of and deliberately indifferent to Clark's condition, as discussed below.
B. Qualified Immunity
A finding of deliberate indifference is only half the inquiry, however, because a defendant who acts with deliberate indifference may nonetheless be protected by the doctrine of qualified immunity. Qualified immunity protects government officials to the extent that their conduct does "not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A clearly established constitutional right is one for which "a reasonable official would understand that what he was doing violates that right." Saucier v. Katz, 533 U.S. 194, 202 (2001). Violations include not only actions that have been previously found to be unlawful but also actions which are apparently unlawful under preexisting law. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Under Saucier and the most recent Sixth Circuit Court of Appeals decision addressing this question, Dunigan v. Noble, 390 F.3d 486 (6th Cir. 2005), the Court must apply a two-part test when determining whether qualified immunity applies. To rule upon the issue of qualified immunity, the court must first determine, taking the facts "in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Dunigan, 390 F.3d at 491. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. If a constitutional violation could be supported by the parties submissions, the second step is to "ask whether the right was clearly established . . . in the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201; see also Dunigan, 390 F.3d at 492. "In other words, where a constitutional violation exists, an officer's personal liability turns on the `objective legal reasonableness' of the action in view of the circumstances the officer confronted assessed in light of `clearly established' legal rules." Dunigan, 390 F.3d at 491 (citing Saucier, 533 U.S. at 202; Anderson, 483 U.S. at 639.)
The Court recognizes that there is a split in the Sixth Circuit as to whether to apply the two-part test in Saucier or the three step analysis set forth in Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999). See Dunigan, 390 F.3d at 491, n. 2. This Court will follow Saucier and Dunigan and apply the two-part test set forth in Saucier. However, the Court notes that the analysis under Williams' three step analysis, in this case, would reach the same result.
Defendants argue that they are entitled to qualified immunity because their actions did not violate a clearly established constitutional right. Whether a clearly established constitutional right has been violated is a question of law. Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997). The Court finds that depriving a prisoner of water, ventilation or medical care during a heat alert violates a clearly established constitutional right and that, as a result, those Defendants who allowed Clark to be deprived of water, ventilation or medical care are not entitled to qualified immunity. See Farmer, 511 U.S. at 832-33, 835; Estelle, 429 U.S. at 103-04; Scicluna, 345 F.3d at 447. Under Dunigan and Saucier, the question becomes which officials deprived Clark of water, ventilation, or medical care and the "objective legal reasonableness" of the actions of these officials considering the circumstances and assessed in light of clearly established legal rules. Dunigan, 390 F.3d at 491. However, a "court should not grant summary judgment on the issue of qualified immunity if there exists a genuine issue of material fact, `involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether the defendant did acts that violate clearly established rights.'" Flint ex rel. Flint v. Kentucky Dept. of Corrs., 270 F.3d 340, 346 (6th Cir. 2001) (citing Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)).
C. Application of Law to Individual Defendants
i. Lee Gilman
Defendant Gilman was Deputy Warden at the time of Clark's death. (Pl.'s Resp. at 11; Defs.' Mot. at 3.) On July 2, 2002, two days before Clark's death, Gilman issued a memo to all staff directing them to open the food slots during a heat alert unless an inmate misused the slot, in which case the slot was to remain closed through the remainder of the heat alert. (Dkt. No. 49, Ex. E) This memo demonstrates that Gilman was subjectively aware that closed slots presented a danger during times of a heat alert, but nevertheless directed staff to close them as a punishment for misuse.
Additionally, Plaintiff has presented evidence that Defendant Gilman may have been aware that Clark was in need of immediate medical or psychological care because an email sent from Outpatient Mental Health Unit Chief Nelson indicated that Clark may need immediate care. (Om. Report at 12, nn. 11 12 (indicating need for immediate psychological or medical care by the Crisis Stabilization Program, which provide expedited access to psychiatric evaluation in a mental health emergency, or Huron Valley Center, a state operated psychiatric hospital supervised by MDOC).) Therefore, Defendant Gilman may have been deliberately indifferent to the medical needs of Clark.
The next question is whether Defendant Gilman is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Gilman is not entitled to summary judgment in light of the above record.
ii. Rufus Wright
At the time of Clark's death, Rufus Wright was an Acting Assistant Deputy Warden at Bellamy Creek. (Wright's Dep. at 26). On July 1, 2003, Defendant Wright may have received an email from Captain Jerome inquiring about the status of Defendant Lauters' referral of Clark's psychological assessment. (Wright Dep. at 41; Om. Report at 10.) On July 3, Defendant Wright received a call from Defendant Harvey who informed him that there was a prisoner, Clark, in a holding cell and the water was turned off in that cell. Id. at 29. He was further informed that Clark's water had been turned off because Clark was disruptive. Id. at 30. Defendant Wright told Defendant Harvey to turn on the water. Id. at 32. Plaintiff presents no evidence that Defendant Wright was aware of the incident in the dining hall. There is no indication that Defendant Wright had notice or knowledge that the water in Clark's cell was turned off after he directed it to be restored. Therefore, Defendant Wright could not have been deliberately indifferent and summary judgment will be granted in Defendant Wright's favor.
iii. Andrew Dyer
At the time of Clark's death, Andrew Dyer was the Administrative Duty Deputy at Bellamy Creek. (Dyer Dep. at 8.) On June 29, 2002, he observed Clark's fall in the dining hall and noticed that Clark was acting strangely. Id. at 26-31. Defendant Dyer did not summon medical care. Id. at 31-32. Since he witnessed the incident in the dining hall, Defendant Dyer may have acted with deliberate indifference to the medical needs of Clark.
The next question is whether Defendant Dyer is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Dyer is not entitled to summary judgment in light of the above record.
iv. Donald Wise
At the time of Clark's death, Don Wise was an Acting Lieutenant at Bellamy Creek. (Wise Dep. at 5-6.) Defendant Wise observed the incident in the dining hall on June 29, 2002. Id. at 7-9. Defendant Wise removed Clark from the dining hall and placed him in the shade; he then returned to the dining hall, leaving Clark with Defendant Dyer. Id. Since Defendant Wise witnessed the incident in the dining hall, he may have acted with deliberate indifference to the medical needs of Clark.
The next question is whether Defendant Wise is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Wise is not entitled to summary judgment in light of the above record.
v. Thomas Lauters
At the time of Clark's death, Thomas Lauters was a Sergeant at Bellamy Creek. (Lauters Dep. at 18). Defendant Lauters was aware of the incident in the dining hall. Id. at 27-28. Since he witnessed the incident in the dining hall, Defendant Lauters may have acted with deliberate indifference to the medical needs of Clark.
The next question is whether Defendant Lauters is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Lauters is not entitled to summary judgment in light of the above record.
vi. Larry Shepard
At the time of Clark's death, Larry Shepard was a Resident Unit Officer ("RUO") at Bellamy Creek. (Shepard Dep. at 10-11.) Defendant Shepard's only interaction with Clark was to offer Clark breakfast on July 3, 2002. (Shepard Dep. at 30; Om. Report at 14.) Plaintiff has presented no evidence that Defendant Shepard knew of the incident in the dining hall, knew that the water was turned off in the cell, or knew of any other reason that Clark was in need of medical attention. Therefore, summary judgment will be granted as to Defendant Shepard.
vii. Ginger Bayne
At the time of Clark's death, Defendant Bayne worked as a Housing Unit Officer at Bellamy Creek. (Bayne Dep. at 12-13.) She worked in Clark's housing unit on June 30 and July 1, 2002. Id. at 24-25. Clark was under Defendant Bayne's supervision and she was expected to make rounds to observe Clark and other prisoners in those observation cells. Id. at 40. She also had the opportunity to check on Clark every 15 minutes during her shift on June 30. Id. at 37. Defendant Bayne was aware that Clark's water was shut off for some time either on June 30 or July 3, 2002. Id. at 38. She offered Clark water every 15 minutes when she believed the water had been turned off. Id. at 45. Defendant Bayne also witnessed Clark drinking from the toilet. Id. at 79. Since Defendant Bayne was aware that Clark's water had been turned off and of Clark's strange behavior, she may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Bayne is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Bayne is not entitled to summary judgment in light of the above record.
viii. Bruce Stout
Defendant Stout was a RUO and worked on Unit 4 on June 30 and July 2. (Stout Dep. at 7-8, 18.) There is no indication Stout was award of the incident in the dining hall. (Stout Dep. at 19.) However, Defendant Stout worked in the "pod" on Unit 4 and made rounds for the purpose of counting the prisoners. (Stout Dep. at 10, 22.) Defendant Stout was aware that the water in Clark's cell was shut off for some time while he was working on June 30 and July 2, 2002. (Stout Dep. at 25-26, 35, 39.) Defendant Stout testified in his deposition that he did not know why he did not do something about the water being turned off on June 30, 2002. (Stout Dep. at 39.) Since Defendant Stout was aware that the water was turned off in his cell, he may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Stout is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Stout is not entitled to summary judgment in light of the above record.
ix. Anthony VanderVlucht
Defendant VanderVlucht was assigned as a relief staff to Unit 4 on June 30 and July 1, 2002. (VanderVlucht Dep. at 10-13.) He also worked in Unit 2 on July 3, 2004. Id. at 11-12. Defendant VanderVlucht was concerned that he never saw Clark take a drink of water and he reported his concern to his supervisor Defendant Harvey. Id. at 16-17. Defendant VanderVlucht checked on Clark every half-hour. Id. at 21-22. Since Defendant VanderVlucht was aware that Clark was not drinking water, he may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights by not summoning medical treatment.
The next question is whether Defendant VanderVlucht is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant VanderVlucht is not entitled to summary judgment in light of the above record.
x. Ricardo Dominguez
Defendant Dominguez was a Housing Unit Officer (also called a Resident Unit Officer) at Bellamy Creek and worked June 30 through July 3, 2002, on the second shift from 2:00 p.m. to 10:00 p.m. (Dominguez Dep. at 17-19.) Defendant Dominguez testified in his deposition that it was part of his responsibility to check on Clark when he made his rounds; however, it is unclear whether he was assigned specifically to Unit 4. Id. at 30. Defendant Dominguez heard Clark barking in his cell, but did not know why Clark was in the segregation cell. Id. at 32-33. Defendant Dominguez never saw Clark drinking water and never heard Clark ask for water. Id. at 36. He also testified that he did not know of any mental illness or medical problem which may have caused Clark not to eat or drink. Id. at 47-49. Defendant Dominguez saw nothing unusual about Clark's physical appearance. Id. at 40. Defendant Dominguez testified he had no knowledge of the water having been turned off in Clark's cell. Id. at 42-44.
Plaintiff has presented no evidence that Defendant Dominguez had any knowledge that Clark was deprived of either ventilation, water or was in need of psychological or medical care for a serious condition. Therefore, summary judgment will be granted in favor of Defendant Dominguez.
xi. Thomas Dowker
Defendant Dowker was assigned to Unit 4 and worked the second shift from June 29 to July 3, 2002 and worked primarily in the pod. (Dowker Dep. at 9.) Defendant Dowker is not positive that the water was turned on while he was working in the pod. Id. at 13-14. He also testified that Clark's behavior could have been due to a medical problem. Id. at 16. Therefore, Plaintiff has presented evidence that Defendant Dowker may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Dowker is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Dowker is not entitled to summary judgment in light of the above record.
xii. Mark Fox
Defendant Fox worked as a psychologist for the Psychological Services Unit at Bellamy Creek at the time of Clark's death. (Fox Dep. at 5.) On July 1, 2002, he interviewed Clark and made a provisional diagnosis of "psychosis not otherwise specified." (Dkt. No. 42, Ex. 19, Fox Aff. at 2.) Defendant Fox then referred Clark for evaluation by the Outpatient Team psychiatrist. Id. At the end of the interview, Clark became lucid and requested that his water be turned back on, and Defendant Fox relayed this request to Sergeant Harvey. (Fox Dep. at 51-52.) Defendant Fox testified that he was told by Defendant Harvey that the water had been turned off because Clark was holding his food slot hostage. Id. at 66. Defendant Fox relayed the information to Clark, who then backed away from the food slot. Id. at 67. Fox also testified that he did not know how long Clark's water had been turned off and whether it had been turned on again when Defendant Fox left. Id. at 70-71. On July 3, 2002, Defendant Fox again attempted to interview Clark, who refused to talk to him. Id. at 75-76. Defendant Fox did not discuss with the officers whether the water had been turned off again, but also did not receive any further requests from Clark about having his water restored. Id. at 75-76. Since Defendant Fox may have ignored Clark's need for water and medical care, he may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Fox is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Fox is not entitled to summary judgment in light of the above record.
xiii. JoAnn Friedt
At the time of Clark's death, Defendant Friedt was employed as a Registered Nurse at Bellamy Creek. (Friedt Dep. at 8.) On June 30, 2002, Defendant Friedt received a call from Sergeant Harvey regarding Clark's behavior. Id. at 29. Although Defendant Harvey testified he requested Defendant Friedt see Clark and that Defendant Friedt did see Clark, Defendant Friedt denies any such request was made or that she went to see Clark. (Harvey Dep. at 26-28, 31-32; Pl.'s Resp., Ex. LL, Harvey Mem.; Friedt Dep. at 40, 43-44, 46.) Defendant Friedt also reviewed the ROBERTA-R form which indicates that Clark had some sort of seizure in the dining hall. (Friedt Dep. at 29; Pl.'s Resp., Ex. C, ROBERTA-R Form.) Since Defendant Friedt may have ignored a request for Clark to receive medical care, she may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights. See Scicluna, 345 F.3d at 447.
The next question is whether Defendant Friedt is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Friedt is not entitled to summary judgment in light of the above record.
xiv. Michael Harvey
Defendant Harvey was a Sargent at Bellamy Creek and worked in Units 4 and 5 on the first shift, from 6:00 a.m. to 2:00 p.m., at the time of Clark's death. (Harvey Dep. at 5, 9.) On June 30, 2002, he observed Clark acting strangely and called Defendant Friedt at Health Care. Id. at 29-32. On July 1, 2002, Defendant Harvey attempted to move Clark to Unit 8, which is closer to Health Care, and Clark would have had more supervision because Unit 8 is an isolated segregation unit. Id. at 33-34. Defendant Harvey could not move Clark because there were no cells available. When he then returned Clark to the observation cell, Clark attempted to hold his food slot hostage. Id. at 34-35. Defendant Harvey forced the slot closed and ordered the water shut off to Clark's cell. He did not record either of these actions in the prison logbook. Id. at 35-37.
Defendant Harvey received at least three requests for the water to be turned back on from Fox, Bayne and Wright. (Harvey Dep. at 37-38; Om. Report at 10; Wright Dep. at 31-32.) Each time Defendant Harvey stated that he would turn the water back on; however, the water in Clark's cell was off when he died. Defendant Harvey testified that the water in Clark's cell was only turned off for ten or fifteen minutes. (Harvey Dep. at 38.) Plaintiff has presented evidence that the water may have been off at least once each day between June 29 and July 4 and was off at the time of Clark's death. (Om. Report at 20-21.) Since Harvey deprived Clark of water, he may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Harvey is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Harvey is not entitled to summary judgment in light of the above record.
xv. Shirley Whittaker
Defendant Whittaker was a Shift Lieutenant for the third shift, meaning she was the highest ranking person at Bellamy Creek at the time of Clark's death. (Whittaker Dep. at 5-7.) Defendant Whittaker's duties included making rounds and talking with the officers in each of the units. Id. at 9-10. Defendant Whittaker testified that she was aware of the incident in the dining hall and that Clark was behaving strangely. Id. at 17-18, 51-52. She also testified she was not aware that the water had been turned off to Clark's cell or that there was any concern that Clark may not have been drinking until after Clark was found unresponsive. Id. at 19, 55-56. Since Defendant Whittaker was aware of the incident in the dining hall and that Clark was behaving strangely, she may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Whittaker is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Whittaker is not entitled to summary judgment in light of the above record.
xvi. Rina Becher
At the time of Clark's death, Defendant Becher worked as a "relief sargent," which means that she fills in when another sargent is off of work for any reason. (Becher Dep. at 10-11.) Defendant Becher worked the third shift, from 10:00 p.m. to 6:00 a.m., beginning the night of July 1, 2002, as a relief yard Sargent. Id. at 8. Defendant Becher testified that she was never aware the water in Clark's cell was turned off. Id. at 11. Defendant Becher observed Clark's odd behavior in his cell, but did not think that there was anything unusual. Id. at 19-20. Defendant Becher testified at her deposition that she was told by the officers on Unit 4 that Clark was in the observation cell because he was being watched for self-harm. Id. at 22-23, 30-32. Since Defendant Becher knew of Clark's behavior and that he was being watched for self-harm, she may have acted with deliberate indifference in a manner that violated Clark's clearly established constitutional rights.
The next question is whether Defendant Becher is entitled to qualified immunity. The Court has found that there is a genuine issue of material fact as to a possible violation of a clearly established constitutional right. Defendant Becher is not entitled to summary judgment in light of the above record.
D. Conclusion
For the reasons stated, the Court finds that Defendants Rufus Wright, Larry Shepard and Ricardo Dominguez are entitled to summary judgment, but summary judgment is not proper for the other Defendants. Additionally, the Court will not dismiss Plaintiff's state claims against these other Defendants, because the federal claims against them have not been dismissed.
A Partial Judgment consistent with this Opinion will be entered.