Opinion
Case No. 6:19-cv-394-Orl-37EJK
10-14-2020
Joyce HERR, Plaintiff, v. ARMOR CORRECTIONAL HEALTH SERVICES, INC., Defendant.
John D. Middleton, Middleton & Middleton, P.A., Melrose, FL, for Plaintiff. Eric J. Netcher, S. Renee Lundy, Courtney Lynn Tournade, Dean, Ringers, Morgan & Lawton, PA, Robindra Nath Khanal, Quintairos, Prieto, Wood & Boyer, PA, Orlando, FL, for Defendant.
John D. Middleton, Middleton & Middleton, P.A., Melrose, FL, for Plaintiff.
Eric J. Netcher, S. Renee Lundy, Courtney Lynn Tournade, Dean, Ringers, Morgan & Lawton, PA, Robindra Nath Khanal, Quintairos, Prieto, Wood & Boyer, PA, Orlando, FL, for Defendant.
ORDER
ROY B. DALTON JR., United States District Judge
Defendant Armor Correctional Health Services, Inc. ("Armor ") moves for summary judgment. (Doc. 103 ("Motion ").) Plaintiff responded. (Doc. 104.) On review, the Motion is denied. I. BACKGROUND
The facts recited here may not be the "actual" facts of the case but reflect Plaintiff's best case as the nonmoving party. See Davis v. Williams , 451 F.3d 759, 763 (11th Cir. 2006).
On March 13, 2015, James Herr ("Herr "), a 71-year-old psychologist, had a standoff with the New Smyrna Beach Police Department, was arrested, and transported to the Volusia County Jail. (Doc. 103-1, p. 1; Doc. 103-6, p. 2.) Six days later, he died. (Doc. 103-2, pp. 9–10.) This action seeks to hold Armor, the private corporation responsible for medical care in the jail, accountable for what happened to Herr in those days. (See Doc. 17.)
A. Herr's Detention & Death
Herr suffered from high blood pressure, anxiety, atrial fibrillation, a slow heart rate, and premature ventricular contractions—putting him at a high risk for cardiac arrest. (Doc. 103-6, pp. 2–3.) To ameliorate this risk, he was prescribed multiple medications: Clonazepam, Busiperone, and Diazpam for anxiety; Zolpidem for sleep; Lisinopril for blood pressure; and Imipramine for depression. (Id. at 3.)
Day One. On March 13, 2015, Armor tried to perform Herr's intake health screening, but failed because Herr refused. (Doc. 103-2, pp. 1–2.) The screener noted Herr made suicidal statements and should be placed on suicide watch—he was placed in the behavioral health unit. (Id. at 2, 20.) That day, Herr's mental health screening showed he was suffering from psychosis. (Id. at 3.)
Day Two. At 8:45 a.m. the next day, on his way to his first appearance, Herr was taken to the clinic, but said, "get away from me—I don't want anyone touching me." (Id. at 9.) He was delusional or detoxing, singing "off we go into the wild blue yonder." (Id. at 19–20.)
Day Three. By March 15, Herr was sleeping and eating well. (Id. at 21.) He had a pleasant affect but was delusional and hallucinating. (Id. ) No screening was completed because Herr refused to cooperate. (Id. at 9.)
Day Four. Herr was still delusional and hallucinating—but mental health personnel noted critical statements from Herr: "PTSD, some medication." (Id. at 22.) Herr was naked in his cell and not providing logical answers. (Id. )
Day Five. On March 17, Herr was still delusional. (Id. at 23.) He said he felt fine, but Armor noted he appeared to be actively hallucinating, his thought processes were disorganized, and his memory was impaired. (Id. )
Day Six. At 1:45 p.m., mental health personnel reported Herr was calm and cooperative, answering questions appropriately. (Id. at 24.) But a progress note thirty-five minutes later said he refused to cooperate for a screening. (Id. at 9.)
Day Seven. On March 19 at 3:55 p.m., Herr was cursing mental health personnel and refusing to be interviewed. (Id. at 25.) At 11:07 p.m. that night, Herr cussed out the corrections officer making rounds. (Id. at 9, 12.) Two minutes later, Herr was found supine on his cell floor, pale in color, unresponsive, with no pulse. (Id. ) Jail staff attempted life-saving procedures but Herr was pronounced dead at 12:33 a.m. on March 20, 2015. (Id. at 9–10, 12.)
B. Cause of Death
Dr. Marcela Chiste performed Herr's autopsy. (Doc. 103-9, p. 1.) She listed the cause of death as hypertensive heart disease—an enlarged heart caused by high blood pressure. (Id. ; Doc. 103-11, p. 12:2–4.) A heart should not weigh above 400 grams, but Herr's weighed 570 grams. (Doc. 103-9, p. 5; Doc. 103-11, p. 12:19–20.) An enlarged heart is unstable and susceptible to sudden arrhythmia. (Doc. 103-11, p. 12:9–11.) Sudden arrythmia killed Herr. (Id. at 21:16–20; Doc. 103-6, p. 5.)
Before his arrest, Herr was prescribed medications for anxiety, insomnia, depression, and high blood pressure. (Doc. 103-6, p. 3.) Plaintiff's expert, Dr. Thomas Berger says Herr's lack of medication while in jail and extreme anxiety, stress, and lack of sleep caused the fatal arrhythmia. (Id. at 5.) He says if Herr received his medications and stressors were avoided, he would not have died. (Id. )
Dr. Chiste says she cannot link denial of hypertensive or anti-anxiety medications to Herr's death because individuals taking prescribed medications can still die from arrythmia. (Doc. 130-11, pp. 16:23–17:4, 18:3–12.)
C. Armor's Written Policies & Practices
According to Armor's written policy, a screening is performed on all inmates that arrive in a facility so "emergent and urgent health needs are met." (Doc. 104-3, p. 1.) Anyone mentally unstable "or otherwise urgently in need of medical attention" is referred immediately for care. (Id. ) The intake screening assesses the inmate's current and past health considerations, including prescribed medications, which are to be maintained. (Id. at 1–2, 5.) If a patient "refuses to be screened or is ‘unscreenable’ due to mental health" he "will be held in intake housing or medical observation until the screening can be completed." (Id. at 5.) If a patient refuses treatment, "medical staff shall make reasonable efforts to convince the patient to voluntarily accept treatment." (Doc. 104-2, p. 3.) And "[i]f there is concern about decision-making capacity, an evaluation is done, especially if the refusal is for critical or acute care." (Id. at 2.)
But some of these written policies were not followed as explained by Charity Bernard ("C. Bernard "), an Armor charge nurse working when Herr was at the Volusia County Jail. (See Doc. 104-1, pp. 16:17–19, 36:6–10.) Instead, those incompetent inmates refusing to be medically screened are sent to the mental health block—not the clinic. (Id. at 36:6–10, 41:2–42:2.) A nurse is tasked with going to the mental health block once a shift to see if incompetent inmates will answer questions. (Id. at 34:15–18.) It's up to the mental health department to communicate with the medical department—both to report concerns or an inmate's level of cooperation. (Id. at 44:2–13, 52:5–21.) This communication sometimes breaks down. (Id. ) Unless there is a known medical problem, the nurses don't take an inmate's vitals. (Id. at 45:2–46:3, 47:23–48:4.)
D. Herr's Medical Care
Registered nurse, Linda Bernard ("L. Bernard "), who worked in correctional healthcare for twenty years, opined on Armor's treatment of Herr. (Doc. 103-5.) She says Armor failed to meet nationally accepted medical practices for the correctional setting. (Id. at 3–4, 19–21.) Armor failed to do an appropriate intake screening, which requires a complete set of vitals, comprehensive review of medical history, and a discussion of medications—a screening which should have been completed in the first twenty-four hours. (Id. at 3–4.) If Herr refused to be screened, L. Bernard says he should have been monitored by medical staff until he could be referred to a health care provider for evaluation and education on non-compliance. (Id. at 4.) If a patient still refuses to be evaluated, he may need to be referred to a hospital. (Id. ) L. Bernard says Herr exhibited serious medical need when he was incoherent—so he should have been evaluated for medical conditions or to assess whether he was competent to refuse. (Id. ) L. Bernard also points out that Armor did not obtain medical information from Herr's family, local pharmacies, or local hospitals. (Id. )
And she contended that Herr's lack of medical treatment was much like multiple others in Armor's care. (Id. at 4–19.) Based on her comparison of sixteen other inmates to Herr, she identified a practice of problems with: screening, medication services, inmates’ special needs, chronic disease services, coordination of care, information on health services, refusals, and emergency services. (Id. )
So Plaintiff, Herr's wife, sued Armor for violating Herr's Fourteenth Amendment right. (Doc. 17.) Armor moves for summary judgment. (Doc. 103.) With Plaintiff's response (Doc. 104), the matter is ripe.
II. LEGAL STANDARDS
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmovant, Battle v. Bd. of Regents for Ga. , 468 F.3d 755, 759 (11th Cir. 2006), so "when conflicts arise between the facts evidenced by the parties, [the court] credit[s] the nonmoving party's version ," Evans v. Stephens , 407 F.3d 1272, 1278 (11th Cir. 2005). But the "court need not permit a case to go to a jury ... when the inferences that are drawn from the evidence, and upon which the non-movant relies, are ‘implausible.’ " Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 743 (11th Cir. 1996) (citation omitted).
III. ANALYSIS
Plaintiff alleges Armor violated Herr's constitutional right to be free from cruel and unusual punishment by exhibiting deliberate indifference to Herr's serious medical needs while acting under color of state law. (Doc. 17.) Armor moves for summary judgment, arguing no reasonable jury could find: (1) Armor acted with deliberate indifference to Herr's medical needs; (2) Armor had a policy or custom of ignoring inmates’ medical needs; (3) Armor's actions caused Herr's death; or (4) punitive damages are warranted. (Doc. 103.) Let's address each.
Armor, a private corporation, is the functional equivalent of a municipality here because it provided medical services to inmates—a traditional state function. See Buckner v. Toro , 116 F.3d 450, 452 (11th Cir. 1997) ; (see also Doc. 103, p. 10.)
A. Deliberate Indifference
Pretrial detainees, like Herr, "have a Fourteenth Amendment due process right to receive medical treatment for illness and injuries, which encompasses a right to psychiatric and mental health care." Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla. , 402 F.3d 1092, 1115 (11th Cir. 2005) (cleaned up). Jail officials violate this right when they are deliberately indifferent to a detainee's serious medical needs. Goebert v. Lee Cnty. , 510 F.3d 1312, 1326 (11th Cir. 2007). A serious medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (cleaned up). Deliberate indifference lies "somewhere between the poles of negligence at one end and purpose or knowledge at the other." Farmer v. Brennan , 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "An official acts with deliberate indifference when he or she knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate." McElligott v. Foley , 182 F.3d 1248, 1255 (11th Cir. 1999) (cleaned up).
The standard for pretrial detainees’ medical care under the Fourteenth Amendment is the same as under the Eighth Amendment for convicted persons. Cook ex rel. Est. of Tessier , 402 F.3d at 1115.
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Armor argues there is insufficient evidence for a jury to find it was deliberately indifferent to Herr's medical needs. (Doc. 103, pp. 4–9.) The Court disagrees. A detainee relies "on prison authorities to treat his medical needs; if the authorities fail to do so, those need will not be met." Estelle v. Gamble , 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). And "in the worst cases, such a failure may actually produce ... death." Id. (cleaned up). Armor knew Herr had a serious medical need—he was delusional, hallucinating, incoherent, and suffering from psychosis. (Doc. 103-2, pp. 1–3, 9–12, 19–25); see Harper v. Lawrence Cnty., Ala. , 592 F.3d 1227, 1234 (11th Cir. 2010). Armor documented this concerning behavior, repeatedly, for seven days. (Doc. 103-2, pp. 1–3, 9–12, 19–25.) But it did not provide medical care. (See id. ) Granted, Herr refused medical care. (See id. ) But there's evidence Herr was incompetent to refuse, and Armor knew it. (See id. ; Doc. 103-5, p. 4.) In the light most favorable to Plaintiff, despite obvious signs that Herr was incompetent and in need of medical attention, Armor did not provide him medical care for a week—recklessly disregarding the risk of serious harm. See Paulk v. Ford , No. 20-10049, 826 Fed.Appx. 797, 805–06 (11th Cir. Sept. 4, 2020). So a reasonable jury could find Armor was deliberately indifferent to Herr's serous medical needs. See id. at 804–05 ; Calhoun v. Volusia Cnty. , 499 F. Supp. 2d 1299, 1304–05 (M.D. Fla. 2007).
B. Policy or Custom
Plaintiff still has a steep hill to climb since she seeks to hold Armor responsible as a state actor under 42 U.S.C. § 1983. (See Doc. 17.) Armor is not liable for constitutional violations done solely by its employees. See McDowell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004). It's liable only if its policies or customs caused constitutional violations. See id. at 1290. A custom is "a practice that is so settled and permanent that it takes on the force of law." Id. (cleaned up). To avoid imposing liability for one isolated incident, a plaintiff typically must show a "persistent and wide-spread practice." Id. (cleaned up). "A series of incidents closely related in time may disclose a pattern of conduct" imposing § 1983 liability. Rogers v. Evans , 792 F.2d 1052, 1058–59 (11th Cir. 1986). The incidents must be substantially similar, but not necessarily identical. Kaether v. Armor Corr. Health Servs., Inc. , No. 16-62950-CIV-ZLOCH/HUNT, 2018 WL 1981133, at *6 (S.D. Fla. Apr. 26, 2018) (citation omitted), adopted by 2018 WL 10788509 (S.D. Fla. May 21, 2018). And if a plaintiff "alleges an ongoing pattern that existed both before and after an incident, such evidence" can show a policy or custom. Id.
Plaintiff says Armor has a custom of inadequate medical care, particularly for intake screening. (Doc. 104, pp. 10–18.) To prove it, Plaintiff has the Bernards. (See Docs. 103-5, 104-1.) L. Bernard reviewed sixteen other incidents with Armor inmates. (Doc. 103-5.) The incidents occurred between 2010 and 2019—Herr's incident falls in the middle. (See id. ) She concludes that all these inmates received insufficient medical care from Armor. (Id. ) Critical here, of ten inmates (including Herr) with insufficient intake screenings, seven had serious medical emergencies. (Id. at 4–6, 14–17.) And C. Bernard says contrary to Armor's written policies, incompetent inmates refusing to be screened are always (to this day) sent to the mental health block, rather than intake housing or medical observation where they're supposed to go until a screening can be completed. (Doc. 104-1, pp. 36:6–10, 41:2–42:2; cf. Doc. 104-3, p. 5.) With evidence of widespread violations of written policy and sixteen other incidents of insufficient medical care within a few years of Herr's death, Plaintiff has provided sufficient evidence of an Armor custom to survive summary judgment. See Young v. City of Augusta, Ga. , 59 F.3d 1160, 1172–73 (11th Cir. 1995).
C. Causation
But did Armor's alleged custom cause Herr's constitutional injury and ultimately his death? See Denham v. Corizon Health, Inc. , 675 F. App'x 935, 940–41 (11th Cir. 2017). Plaintiff's expert, Dr. Berger, contends that if Herr took his prescribed medications and avoided the extreme stress he suffered in jail, he would not have died. (Doc. 103-6, p. 5.) Armor says Dr. Berger's opinion is "wildly speculative and beyond what should be considered by this court." (Doc. 103, p. 18.) But Armor did not move to exclude Dr. Berger's opinion or disqualify him as an expert. See Diamond Resorts, Int'l, Inc. v. Aaronson , 371 F. Supp. 3d 1088, 1106 n. 10 (M.D. Fla. 2019). Instead, it makes arguments more appropriate for cross-examination. (Doc. 103, pp. 17–23); see Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd. , 326 F.3d 1333, 1341 (11th Cir. 2003). With Dr. Berger's report, which ties Armor's lack of medical treatment to Herr's sudden arrythmia, there is a genuine dispute over the cause of Herr's death so that a reasonable jury could find Armor liable. (See Doc. 103-6.)
D. Punitive Damages
Last, Armor contends no reasonable jury could find punitive damages are warranted here. (Doc. 103, p. 23.) Punitive damages "are available in a § 1983 case ‘when the defendant's conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others.’ " Hooks v. Brewer , 818 F. App'x 923, 931 (11th Cir. 2020) (quoting Smith v. Wade , 461 U.S. 30, 55, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ). As there is a triable issue whether Armor was deliberately indifferent to Herr's serious medical needs, there is also sufficient evidence Armor was recklessly or callously indifferent to Herr's constitutional rights. See Moulton v. DeSue , 966 F. Supp. 2d 1298, 1310 (M.D. Fla. 2012) ; Jenkins v. Corizon Health Inc. , No. CV418-099, 2020 WL 5269405, at *8 (S.D. Ga. Sept. 3, 2020). So Armor is not entitled to summary judgment.
IV. CONCLUSION
It is ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (Doc. 103) is DENIED .
DONE AND ORDERED in Chambers in Orlando, Florida, on October 14, 2020.