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WILLIE H. BOZEMAN, as legal representative of the Estate of MARIO
HAGGARD, deceased, Plaintiff, v. SILAS ORUM, III, et al., Defendants.
CIVIL ACTION NO. 00-T-1368-N
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OFALABAMA, NORTHERN DIVISION
April 12, 2002, Decided
April 12, 2002, Filed,
Entered
ORDER
Plaintiff Willie H. Bozeman, as
legal representative of the estate of Mario Haggard, asserts federal and
state-law claims arising out of the death of Haggard, a pre-trial detainee at
the Montgomery County Detention Facility, Montgomery, Alabama; she asserts
constitutional claims under the fourth, eighth, and fourteenth amendments to
the United States Constitution (as enforced through 42 U.S.C.A. § 1983), as
well as a state-law medical-malpractice claim under the Alabama Medical
Liability Act, 1975 Ala. Code §§ 6-5-480 to - 488, and 6-5-540 to -552.
Defendants Silas Orum, III, James Thrift, Darryl N. Wood, Jeffrey Sanderson, and
Clarence Wilson are correctional officers at the detention facility, and
defendants Vollie Boddie and Carmelita McElroy are on the nursing staff.
Defendant Baptist Health Services provided McElroy to the detention facility
pursuant to a nursing services contract. Defendants Larry Haverland, Gina
Savage, and Wanda Robinson are supervisors at the facility, and defendant D. T.
Marshall is the Sheriff of Montgomery County, where the facility is located.
This court has jurisdiction over the claims in this lawsuit on the basis
of 28 U.S.C.A. §§ 1331 (federal question), 1343(a)(3) and (4) (civil rights),
and 1367 (supplemental). [*1221] Count One of the plaintiff's complaint alleges
that the correctional officers
used unreasonable deadly force in violation of the fourth and fourteenth
amendments. n1 Count Two charges deliberate
indifference to Haggard's serious medical needs, both by the nurses for
not recognizing and treating his mental illness and by the officers for failing
to attempt to resuscitate him or to obtain medical assistance for him.
Count Three seeks to impose liability on the Montgomery County Detention
Facility leadership for the failure to train or supervise employees as to
various policy issues. Count Four is a state-law claim against Baptist Health
Center and Nurse McElroy, based on the Alabama Medical Liability Act, alleging
a breach of the applicable nurse's standard of care in the treatment of
Haggard. The case is currently before the court on the summary-judgment motions
of the defendants. The motions will be granted as to all claims except the
medical-needs claim against the correctional officers.
I.
SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show 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). Under Rule 56, the party seeking summary judgment must
first inform the court of the basis for the motion, and the burden then shifts
to the non-moving party to demonstrate why summary judgment would not be
proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553
(1986); see also Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (discussing burden-shifting
under Rule 56). The non-moving party must affirmatively set forth specific
facts showing a genuine issue for trial and may not rest upon the mere
allegations or denials of the pleadings. Fed. R. Civ. P. 56(e).
The
court's role at the summary-judgment stage is not to weigh the evidence or to
determine the truth of the matter, but rather to determine only whether a
genuine issue exists for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,
2511 (1986). In doing so, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that
party's favor. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
II.
APPROPRIATE EVIDENCE
Several pieces of proof submitted by the plaintiff are challenged by the
defendants as lacking the evidentiary quality necessary for their consideration
by this court for purposes of summary judgment. n2 Specifically, the defendants
point to unsworn affiants and hearsay statements, as well as unauthenticated
and incomplete documents, presented by the plaintiff in opposition to summary
judgment.
[*1222]
Affidavits
submitted in support or opposition to a summary-judgment motion must be based
on personal knowledge, setting forth admissible facts, and shall show that the
affiant is competent to testify. Fed. R. Civ. P. 56(e). The use of the word "affidavit" in
Rule 56 (an affidavit being by definition a sworn witness statement) perforce
bars unsworn witness statements from consideration.
In
addition, the general rule is that inadmissible hearsay cannot be considered on
a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.
1999). However, if this hearsay can be "reduced to admissible form"
at trial, it may be considered. Id. at
1323 (citing several cases). Even though a document, deponent, or affiant
references hearsay information, that information may be considered on summary
judgment if it would be admissible at trial under an exception to the hearsay
rule or as non-hearsay. Id. at 1323-24.
Generally, documents must be properly authenticated in order for them to
be considered on summary judgment. Burnett v. Stagner Hotel Courts, Inc., 821
F. Supp. 678, 683 (N.D. Ga. 1993). However, it makes sense that unauthenticated
documents may be considered when no objection is made or when it is apparent
that those documents can be reduced to admissible, authenticated form at trial.
A.
Mt. Meigs Medical Records
The defendants argue that the
medical records from the Alabama Department of Youth Services facility at Mt.
Meigs, Alabama have not been authenticated and are incomplete. Therefore,
according to the defendants, the records should not be consulted by the court
in deciding the pending motions. However, it is apparent that these records
could easily be authenticated at trial, and, indeed, the plaintiff has even
presented an admission from the defendants that the records are those of
Haggard. Cf. Fed. R. Evid. 1007 ("Contents of writings, recordings, or
photographs may be proved by the testimony or deposition of the party against
whom offered or by that party's written admission, without accounting for the
nonproduction of the original."). As to the completeness requirement, it
seems antithetical to require the plaintiff to present a substantial amount of
documents upon which she does not specifically rely when the defendants certainly
have had an opportunity to highlight and themselves present any critical
information not contained in the plaintiff's excerpt. The court does not
require complete copies of every deposition to be submitted if the relevant
portions of those depositions are highlighted for the court; there is no reason
not to extend that practical principle to this evidence.
B. Witness Statements Compiled by the Alabama Bureau of Investigation
The
plaintiff attempts to rely upon statements of inmates taken as a component of
an inquiry into Haggard's death by the Alabama Bureau of Investigation. The
court agrees with the defendants that these statements should not be considered
for purposes of the summary-judgment motions. These unsworn statements do not
meet the requirements for an affidavit that may be considered under Rule
54(c). Brewer v. City of Daphne, 111 F.
Supp.2d 1299, 1303 (S.D. Ala. 1999) (finding that inmate statements contained
in an Alabama Bureau of Investigation report were not competent evidence at
summary judgment).
This outcome is correct, despite the plaintiff's submission of a
certificate of authenticity by the Alabama Bureau of Investigation as to the
investigative file as a whole and despite the public-records exception [*1223]
to the hearsay rule found at Fed. R. Evid. 803(8). A certificate of
authenticity does not cast any light on the underlying hearsay problem of the
statements or their fundamental flaws as affidavits under Fed. R. Civ. P. 56(e). Simply, the hearsay
problem here contains two layers: the report itself and the statements
contained therein. Furthermore, although Fed. R. Evid. 803(8)(C) allows the
introduction of "factual findings resulting from an investigation made
pursuant to authority granted by law" (emphasis added), the plaintiff is
not introducing the findings from an investigation, but rather the evidence
gathered by the investigating body on which to base its findings. Such
information is not covered by the hearsay exception cited.
C.
Testimony of Dr. James Lauridson
The
court agrees with the defendants that Dr. James Lauridson's testimony as to the
time that the officers knew that Haggard was not breathing is entirely based on
hearsay. This particular hearsay testimony cannot be reduced to admissible form
at trial; that is, Dr. Lauridson could not testify to this information under
any hearsay exception and the information does not seem to be presented for a
non-hearsay purpose. n3 Therefore, that portion of Dr. Lauridson's testimony
will not be considered in ruling on the pending motions.
The
plaintiff's arguments on this point are misplaced. Dr. Lauridson may be
qualified to testify as an expert in this case, particularly with regard to the
cause and sequence of Haggard's death, and may, correlatively, be able to
testify to otherwise inadmissible evidence used in forming his expert opinions
on these matters. However, there is no basis in the evidentiary record for
drawing the conclusion that this particular information was relied upon by him
in forming his expert opinion as to the death of Haggard. Rather, great detail
concerning the physical condition of Haggard's body seems to support those
conclusions. Nor, to this court's knowledge, has Dr. Lauridson been
unambiguously identified as the expert charged with establishing a
timetable for Haggard's unconsciousness
and death.
Furthermore, even if Dr. Lauridson did use this information in creating
a relevant opinion as to these issues, it is markedly unclear to the court that
this type of information would be admissible; that is, the court doubts that
this information is the sort "reasonably relied upon" by this type of
expert in making this conclusion or that the information should not be barred
from the jury's ears based on a weighty helping of prejudice and only minimal
probative value. Fed. R. Evid. 703.
D.
Inmate Depositions
The
court agrees with the defendants that some of the excerpts from the depositions
of inmates Toney, Cobb, Johnson, Watkins, and Little are patently instances of
hearsay that will not be admissible at trial. In addition, portions of this
testimony indicate that the witnesses were not basing their recollection on
personal knowledge of the events as is required under Fed. R. Civ. P. 56(e). To
the extent that the testimony does implicate these concerns, these statements
will not be considered at this point in the proceedings.
E.
Jail Standards
The
plaintiff inserts into her argument several volumes of regulations and
standards that the defendants argue are irrelevant to the resolution of this
lawsuit. The court tends to agree, as the central question in this lawsuit is
not the negligence of the defendants, to which a customary standard may be
applicable, but the violation of [*1224] clearly established law by the defendants
resulting in harm to Haggard. Belcher
v. City of Foley, 30 F.3d 1390, 1399 (11th Cir. 1994). Therefore, the standards
cited by plaintiff will be ignored for
purposes of finding clearly established law as to the federal constitutional
claims. However, these standards could conceivably be relevant to whether the
defendants' actions during the incident otherwise constitute a violation of
federal law or state medical malpractice laws, and the court may consult the
standards for those purposes.
III. FACTS
Based on the relevant standards and with due consideration to the
limitations discussed above, the facts of this case for summary-judgment
purposes are as follows.
On August 18, 1999, Haggard, a
17-year-old pretrial detainee, was transferred to the Montgomery County
Detention Facility from the Alabama Department of Youth Services facility at
Mt. Meigs, to be held
pending trial on escape charges. Earlier in August 1999, Haggard and another
juvenile escaped from Mt. Meigs by driving away in an unattended vehicle.
The transfer to the Montgomery County
Detention Facility was pursuant to court order, the Family Court of Montgomery
County having found that Haggard could not be appropriately disciplined in the
juvenile system and that, as there were no reasonable grounds to believe that
Haggard was commitable to an
institution for the mentally ill or infirm, he should be transferred to an
adult institution pending trial. n4 Haggard was placed among the general inmate
population in Cell 4E-9, a cell block reserved for inmates convicted of serious
crimes or having known escape tendencies.
During intake, Nurse McElroy
gave Haggard an initial medical screening. Haggard told McElroy that he had a
history of mental illness and was currently prescribed medications for rest. n5
According to the form completed by McElroy at this screening, Haggard indicated
that although he had been tested for mental health problems, these were
"evaluations only," and that he was prescribed medication "for
rest" while at Mt. Meigs. n6 Haggard did not know the name of the
medication he was taking at Mt. Meigs. According to McElroy, although it was
the policy of the Montgomery County Detention Facility to obtain the prisoner's
medical records if he indicated that he was currently on medication, she
decided not to request the records in Haggard's case because he said that he
was on medication "for rest," and it was the policy of the detention
facility not to give medication for rest.
Nurse McElroy also recorded her
own visual impressions of Haggard, noting that his appearance and attitude did
not suggest that he was a suicide risk. The Montgomery County Detention
Facility does have a policy of isolating suicide risks for observation and
ordering a mental evaluation on those inmates as soon as possible; however,
because McElroy did not note such a risk, no such isolation or evaluation
occurred. [*1225]
In fact, as recently as June
1999, Haggard was diagnosed as "psychotic" by a licensed Alabama
psychologist and placed on antipsychotic medication based in some part on
Haggard's hyper-religious behavior. n7 No one at the detention facility
followed up on Haggard's disclosures by determining the type of medication he
was prescribed or by discovering the results of the mental-health evaluation or
the extent of any mental illness Haggard may have suffered, and, consequently,
no one at the detention facility knew of the earlier diagnosis. n8 Though Haggard signed a release allowing
the detention facility to obtain his medical records, those records were never
obtained.
There were simply no procedures
in place to determine upon intake whether a non-suicidal inmate should be
referred for mental-health evaluation or treatment. n9 Nurse Vollie
Boddie, the highest ranking medical professional on site, made decisions as to
subsequent mental-health care for inmates in consultation with Captain Robinson
and Director Haverland. n10 The three nurses on the regular medical staff at
the detention facility (Boddie, Rainey n11 and McElroy) did not have any
significant mental-health training. n12 Nor was a mental-health professional employed by or on
call to the detention facility. n13 Haggard made no request for and did not
receive medication or mental-health treatment while detained at the facility.
n14
On October 11, 1999, between
4:00 a.m. and 5:00 a.m., Haggard had what was apparently a mental breakdown in
his cell. He stripped his clothes off and flooded the area by stopping up the
commode. While shouting phrases like "the blood of Jesus is on me"
and "Jesus come get me," Haggard dipped his face and head in the
water in the commode. n15 He also tied a string around his neck in an apparent
though futile attempt to strangle himself, as the string was by no means strong
enough to support his weight. n16
Correctional officers responded to the
disturbance in Haggard's cell almost immediately. Although the officers
attempted to calm Haggard down from outside the cell, their attempts were
unsuccessful. Therefore, a decision was made to enter the cell. Inmate Jeremy
Medders, who was in the cell adjacent to Haggard, said that the officers told
Haggard that if they had to come into his cell, they were going to "kick
his ass." n17
[*1226]
Several inmates stated that they
heard what sounded like someone getting punched or slapped, and one of the
officers saying to Haggard "Is that all you got?" n18 Fellow inmates
reported hearing sounds that indicated to them that someone was being slammed
on the bed in the cell. n19 Inmates also heard a choking sound, like someone
was having difficulty breathing. n20 According to the officers, they were
eventually able to subdue Haggard on his bunk and place handcuffs on him. n21
Haggard was eventually handcuffed, shackled, and removed from the cell.
According to inmates, Haggard was not moving when they removed him from the
cell; he looked unconscious or dead. n22 At this point, inmate Cobb said that
the officers, particularly officer Orum, kept saying "damn, damn, damn" and looked panicked. n21
Haggard was carried out,
face-down and covered by a sheet, by four officers, with an officer on each arm
and on each leg, using batons passed through the shackles and handcuffs. n24
This method of carrying Haggard would have made his weight bear down on his
upper body and chest, restricting his ability to breathe. None of the officers
knew that this method of carrying Haggard could cause him to asphyxiate; nor
did they receive any training that suggested their actions could result in
serious harm to Haggard. Indeed, the officers had been trained to carry inmates
using this method.
The
officers carried Haggard from his cell in 4E to the 4 North hallway, a trip
that took approximately 14 minutes. n25 The time was lengthened by a locked
door that the officers had trouble opening.
Upon arriving at the 4 North
hallway, the officers claim that they first noticed that Haggard was not
breathing. n26 They [*1227] called Nurse Rainey, who arrived two minutes later.
n27 She began CPR, assisted by several officers, and paramedics were called to
the scene. All attempts to resuscitate Haggard were unsuccessful. Haggard was
transported to Baptist Hospital, and life support efforts were discontinued at
7:28 a.m.
An autopsy performed by Dr.
James Lauridson indicated abrasions on the inner part of Haggard's upper and
lower lips that could have been caused by Haggard's teeth being forced against
his lips. n28 Lauridson is of the opinion that
these abrasions are consistent with Haggard's head being forced into his
bunk during the efforts to subdue him, causing a restriction in his ability to
breathe. n29 Other symptoms, including
swelling of the brain (cerebral edema) and fluid buildup in Haggard's lungs,
also indicated that Haggard's ability to breathe was constrained at some point
during or throughout the struggle. n30 The autopsy indicated that the cause of
death was asphyxia. n31
IV.
DISCUSSION
A.
Excessive Force Claim (Count One)
Count One of the complaint alleges that the correctional officers unreasonably
used deadly force against Haggard in violation of the fourth and fourteenth
amendments. For the reasons below, summary judgment is appropriate as to this
claim. As the defendants have raised the defense of qualified immunity, the
court will first outline the contours of that defense, which will remain
relevant throughout this opinion, before delving into the substantive
violations claimed.
1.
Qualified Immunity
The
doctrine of qualified immunity insulates government agents from personal liability
for money damages for actions taken in good faith pursuant to their
discretionary authority. Harlow v.
Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982); Greason v. Kemp, 891 F.2d
829, 833 (11th Cir. 1990). As established by the Supreme Court in Harlow, the
test for good faith or qualified immunity turns primarily on the objective
reasonableness of the officials' conduct in light of established law:
"governmental officials ... generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Where the law that
the defendants allegedly violated was not clearly established at the time of
the alleged offense, the defendants are entitled to qualified immunity. Id. at 807, 102 S. Ct. at 2732;
Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir. 1990).
If the law was clearly established, however, the immunity defense will fail
since "a reasonably competent public official should know the law
governing his conduct." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738.
A
two-step analysis is followed to determine whether public officials are
entitled to qualified immunity. Sims v. Metropolitan Dade County, 972 F.2d
1230, 1236 [*1228] (11th Cir. 1992). First, the defendants must prove that they
were acting within the scope of their discretionary authority at the time of
the allegedly unconstitutional conduct. Id. Once this is shown, the burden
shifts to the plaintiff to prove that the defendants' actions violated clearly
established statutory or constitutional law. Id.; Busby v. City of Orlando, 931 F.2d 764, 773 (11th Cir. 1991);
Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322 (11th Cir. 1989).
As
the Supreme Court recently indicated, the preferred mode of analyzing whether
statutory or constitutional law was clearly established is as follows: first,
the court must "determine ... whether the plaintiff has alleged a
deprivation of a constitutional right at all. Normally, it is only then that a
court should ask whether the right allegedly implicated was clearly established
at the time of the events in question." County of Sacramento v. Lewis, 523
U.S. 823, 841 n.5, 118 S. Ct. 1708, 1714 n.5, 140 L. Ed. 2d 1043 (1998); see
also Siegert v. Gilley, 500 U.S. 226,
232, 111 S. Ct. 1789, 1793 (1991) ("A necessary concomitant to the
determination of whether the constitutional right asserted by a plaintiff is
'clearly established' at the time the defendant acted is the determination of
whether the plaintiff has asserted a violation of a constitutional right at
all," and courts should not "assume, without deciding, this
preliminary issue."). The Supreme Court noted that this preferred mode of
analysis, while contradicting "the generally sound rule of avoiding
determination of constitutional issues," is still appropriate because,
"if the policy of avoidance were always followed in favor of ruling on qualified
immunity whenever there was no clearly settled constitutional rule of primary
conduct, standards of official conduct would tend to remain uncertain, to the
detriment both of officials and individuals. An immunity determination, with
nothing more, provides no clear standard, constitutional or
non-constitutional." Id.
If
the court determines that the plaintiff ha4s not alleged a deprivation of a
constitutional right, then inquiry is over, for it would follow perforce that
such right was not clearly established. However, if the court determines that
the plaintiff has, in fact, alleged a deprivation of a constitutional right,
then further inquiry is needed as to whether that right was clearly established
at the time of the defendants' alleged violation of the right; and, of course,
the violation of the clearly established right must be self-evident from the
factual allegations set forth by the plaintiff in her complaint. Rich v. Dollar, 841 F.2d 1558, 1564 (11th
Cir. 1988).
In
order for a right to be clearly established, "the contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violated that right." Lowe v. Aldridge, 958 F.2d 1565,
1570 (11th Cir. 1992) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.
Ct. 3034, 3039 (1987)). "This is not to say that an official action is
protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of
preexisting law, the unlawfulness must
be apparent." Id. In determining the state of the law, this court must
look to "the law originating in [the Eleventh] Circuit, as well as the
Supreme Court, the courts of appeals, and the district courts." Leeks v.
Cunningham, 997 F.2d 1330, 1333 (11th Cir. 1993); Greason, 891 F.2d at 833.
Therefore, for the plaintiff to defeat the defendants' request for dismissal on
qualified immunity grounds, she must show that the right she is claiming was
"clear, factually-defined, [and] well-recognized" at the time of the
defendants' conduct. Dartland, 866 F.2d
at [*1229] 1321; see also Bates v.
Hunt, 3 F.3d 374, 379 (11th Cir. 1993).
The
plaintiff, as representative of Haggard's estate, claims that the officers
unreasonably used deadly force in their encounter with Haggard, in violation of
the fourth and fourteenth amendments. There seems to be no question that these
officers were acting in the scope of their discretionary authority at the time
of the alleged constitutional deprivation. To resolve the qualified-immunity
question, therefore, a determination as to whether this incident implicates a
clearly established constitutional right must be made. As to the
fourth-amendment claim, the court finds that the right, if any, is not clearly
established as to a pretrial detainee. On the fourteenth-amendment claim, the
court finds that the plaintiff has not produced sufficient evidence to create a
jury question as to the excessive use of force, and, in any event, that the
officers are entitled to qualified immunity for their use of force under the
facts of this case.
2.
Fourth-Amendment Excessive-Force Claim
The
correctional officers argue that the fourth amendment does not provide any
protection to pre-trial detainees; rather, the fourteenth amendment is the proper
source of constitutional protection. Both parties admit that the scope of
fourth-amendment protection for pretrial detainees is not well-defined, citing
Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S. Ct. 1865, 1871 n.10 (1989), in
which the Supreme Court admitted that the point beyond arrest when
fourth-amendment protection ends is unclear. See also Vineyard v. County of Murray, Georgia, 990 F.2d 1207, 1211 (11th
Cir. 1993). This court sees no need to delve into this uncertain corner of the law at this time.
Without clearly established law to guide the officer's actions, qualified
immunity applies. Summary judgment is due on the fourth-amendment
excessive-force claim against the officers.
3.
Fourteenth-Amendment Excessive-Force Claim
The
fourteenth amendment clearly provides due-process protections to pretrial
detainees against the use of excessive force that amounts to punishment.
Graham, 490 U.S. at 395 n.10, 109 S. Ct. at 1871 n.10; Vineyard, 990 F.2d at
1211. In assessing the actions of the officer vis-a-vis substantive due-process
requirements, the Eleventh Circuit has adopted the analysis set forth in
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert. denied, 414 U.S.
1033, 94 S. Ct. 462 (1974). Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01
(11th Cir. 1985) (en banc), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970
(1986). The exigencies and practicalities of detention force the conclusion
that not every application of intentional force rises to the level of a
deprivation of due process. Johnson,
481 F.2d at 1033. Therefore, the Johnson court identified several relevant
concerns in determining whether the constitutional line has been crossed: the
need for the use of force, the relationship between the need for force and the amount
of force used, the extent of injury
inflicted, and the motive for using force, whether force was in good
faith to restore order or maliciously for the purpose of causing harm. Id. at 1033.
Viewing the evidence presented
in the light most favorable to the non-movant, the court finds that the
plaintiff has not raised a substantial question of material fact as to whether
the force used against Haggard contravened due-process protections. Some level
of force was necessarily used by the officers to restore order to a disruptive
situation, and this level of force may indeed have been higher than usual due
to the characteristics of the situation. [*1230] Haggard was wet and slippery,
as was the floor of his cell, from the flooded commode. The officers therefore
had great difficulty holding on to Haggard and subduing him. Haggard was also
apparently undergoing a mental breakdown, which made reason and discussion a
less effective way to control the situation. Although the neighboring inmates
heard the officers threaten to "kick [Haggard's] ass," this
statement, like so many others used by law enforcement to attempt to defuse a
situation before the actual use of force is imminent, is not of itself
indicative of bad faith or malice on the part of the officers. While
neighboring inmates heard sounds of a scuffle, including the sound of slaps or
punches, this force may well have been necessary in the performance of the
officers' duties. In short, the facts as presented do not sufficiently raise a
jury question that the officers used excessive force: That some force was
necessary is evident, and the exigencies of the situation and the lack of
first-hand clear testimony from the inmates as to the events within the
cell make it impossible for a jury to reject the correctional officers'
first-hand account without doing any more than guessing as to what occurred.
In
addition, in order to hurdle the qualified immunity defense, the breached
constitutional standard must be one that was clearly defined at the time of the
incident. It is clearly established, as cited above, that to inflict harm in
bad faith on a pretrial detainee as punishment is in violation of the due
process clause of the fourteenth amendment.
Graham, 490 U.S. at 395 n.10, 109 S. Ct. at 1871 n.10; Vineyard, 990
F.2d at 1211. Based on the foregoing discussion, there is not sufficient
evidence to overcome qualified immunity for the officers on this claim: it has
not been established that the conduct of the officers would contravene a
clearly defined constitutional standard.
B.
Deliberate Indifference to Medical Needs (Count Two)
There are two distinct claims of deliberate indifference to the serious
medical needs of Haggard. First, the failure of the officers to resuscitate
Haggard after he stopped breathing is arguably a predicate for such action.
Second, the nursing staff's denial of mental-health evaluation and treatment
for Haggard could show deliberate indifference.
1.
Eighth-Amendment Deliberate-Indifference Claim
The
eighth amendment's protection against cruel and unusual punishments is violated
by deliberate indifference to the serious medical needs of prisoners. Estelle
v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). Although the plaintiff
attempts to characterize this set of claims as violative of the eighth
amendment, it is well settled that the guarantees of that amendment are not
available to pretrial detainees. Ingraham v. Wright, 430 U.S. 651, 671-72 n.40,
97 S. Ct. 1401, 1412-13 n.40 (1977); Tittle v. Jefferson County Comm'n, 10 F.3d
1535, 1539 n.3 (11th Cir. 1994). The provisions of the eighth amendment are
relevant as a limitation of the state's power to punish, a power that the state possesses only after a formal
adjudication of guilt against the accused.
Ingraham, 430 U.S. at 671-672 n.40, 97 S. Ct. at 1412-13 n.40.
Rather, the relevant constitutional guideline for pretrial detainees is
the due process clause of the fourteenth amendment. As no constitutional
violation under the eighth amendment may be found against the defendants in
this case, claims arising under the eighth amendment shall be dismissed.
[*1231]
2.
Fourteenth-Amendment Deliberate-Indifference Claim
The
Supreme Court has held that the protection afforded a pretrial detainee by the
fourteenth amendment is "at least as great" as the protection under
the eighth amendment granted to a prisoner. City of Revere v. Massachusetts
General Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983 (1983). Therefore, at a
minimum, the deliberate indifference of officials to the serious medical needs
of a pretrial detainee will violate the fourteenth amendment. Lancaster v. Monroe County, Ala., 116 F.3d
1419 (11th Cir. 1997) The argument that a lesser standard should be used to
evaluate the conduct of the officers under the fourteenth amendment is
eminently logical. While the eighth amendment guarantee for prisoners prohibits
only cruel and unusual punishment, the due process protection for pretrial
detainees is to prohibit the imposition of any condition of confinement that
amounts to punishment, Bell v. Wolfish, 441 U.S. 520, 537 n.16, 99 S. Ct. 1861,
1873 n.16, 60 L. Ed. 2d 447 (1979).
However, in the context of a claim implicating the denial of a basic
need of a pretrial detainee, such as food, water, or medical care, the Eleventh
Circuit has treated the eighth-and fourteenth-amendment protections as
coextensive. Hamm v. Dekalb County, 774 F.2d 1567, 1574 (11th Cir. 1985); n32
see also Tittle v. Jefferson County Commission, 10 F.3d 1535, 1539 (11th Cir. 1994)
(prisoner suicide). Therefore, to prevail on a charge that jail officials
failed to provide adequate medical treatment, a pretrial detainee must show
that the officials acted with deliberate indifference to the detainee's serious
medical condition. Tittle, 10 F.3d at
1539; Thornton v. City of Montgomery, Ala., 78 F. Supp.2d 1218, 1225 (M.D. Ala.
1999), aff'd, 228 F.3d 414, 415 (11th Cir. 2000) (table).
"Deliberate indifference" requires that the official know of
and disregard an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.
Ct. 1970, 1979 (1994). The official "must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Id. (emphasis added). Deliberate indifference contemplates a state
of mind more blameworthy than negligence.
Id. at 835, 114 S. Ct. at 1978. A "serious medical condition"
is an objectively serious medical need that, if left unattended, poses a serious
risk of serious harm. Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir. 2000) (internal citations omitted).
a.
Claim Against Nurses
Psychiatric needs can constitute serious medical needs, and severe
inattention to these needs can constitute deliberate indifference. Greason v.
Kemp, 891 F.2d 829, 834 n.10 (11th Cir. 1990). However, the bare claim asserted
by the plaintiff is that the nurses, without knowledge of any sort of Haggard's
serious mental problem, were deliberately indifferent by failing to obtain and
review the relevant medical records and, consequently, by failing to obtain
treatment and medication upon learning that Haggard, an apparently normal
acting and looking young man, had been evaluated for mental-health problems
[*1232]in the past and had been prescribed medication for rest.
Given the limited amount of information provided to the nurses by
Haggard during intake, these failures do not exhibit knowledge of a serious
risk and the conscious disregard of the risk with knowledge of the probable
harm that would result, so as to evidence a constitutional violation. Cf. Campbell v. Sikes, 169 F.3d 1353 (11th Cir.
1999) (holding that defendant psychiatrist, who discontinued inmate's psychotropic
medication based on summary of inmate's prior mental health treatment was not
deliberately indifferent); Dolihite v. Maughon, 74 F.3d 1027, 1043 (11th Cir.
1996) (holding that therapist with knowledge of inmate's mental illness who
took inmate off medication and observation could be deliberately indifferent).
There was no consciousness that the conduct was likely to cause harm: the
nurses had no knowledge during intake, beyond a slight flag of past evaluations
for mental illness and "rest" medication, to indicate that Haggard
had any sort of mental problem. The failure to inform the officers or
supervisors of Haggard's mental condition therefore also does not state a
constitutional-level deprivation by the nurses. Nor does the failure to provide
mental-health treatment during Haggard's time at the Montgomery County
Detention Facility state a claim against the nurses.
b.
Claim Against Correctional Officers
The plaintiff claims that the
correctional officers were deliberately indifferent to the serious medical
needs of Haggard by failing to resuscitate him after they realized he was not
breathing. The plaintiff contends that the officers knew Haggard was in this
state before they left the cell or, at the latest, by the time they were on the
catwalk. The court finds competent evidence to suggest that the officers knew
Haggard was unconscious and not breathing when they took him from the cell. For
example, many of the inmates have given testimony that they heard sounds of
choking from inside the cell during the altercation and that Haggard looked
unconscious or dead when removed from the cell. The officers seemed panicked,
and Officer Orum is reported to have repeatedly said "damn, damn,
damn." Moreover, once the officers knew that they had applied force
sufficient to render Haggard unconscious, they were obligated to make sure that
that force had not left him lifeless too.
It is well-established that failing
to provide needed assistance in response to the serious medical condition of a
prisoner arises to the level of a constitutional violation. Lancaster v. Monroe
County, 116 F.3d 1419, 1425 (11th Cir.
1997) ("The case law also had clearly established before this case arose
that an official acts with deliberate indifference when he intentionally delays
providing an inmate with access to medical treatment, knowing that the inmate
has a life-threatening condition or an urgent medical condition that would be
exacerbated by delay."). Failing to resuscitate or immediately call
medical personnel in response to a unconscious, non-breathing prisoner clearly
violates this standard. It follows that summary judgment is not appropriate for
the claim of deliberate indifference to serious medical needs as to the
officers involved.
C.
Failure to Train and Supervise (Count Three)
Supervisory personnel cannot be liable under § 1983 for a constitutional
violation of one of their subordinates via a theory of respondeat superior.
Monell v. Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036
(1978); Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990). Rather, to hold
supervisors liable, [*1233] the plaintiff must be able to show either (1) that
the supervisors personally participated in, instigated, or adopted the acts
comprising the alleged constitutional violation or (2) that there was a "causal
connection" that links the supervisors' policies, or decisions and the
constitutional violation. Hill v. Dekalb Reg'l Youth Detention Ctr., 40 F.3d
1176, 1192 (11th Cir. 1994). A "causal connection" can be shown when
there is a history of widespread abuse that should put the supervisor on notice
of the problem, and the supervisor nevertheless fails to correct the
problem. Hartley v. Parnell, 193 F.3d
1263, 1269 (11th Cir. 1999). Such a connection could also be shown when an
improper custom or policy established by the supervisor results in deliberate
indifference to constitutional rights. Id., citing Rivas v. Freeman, 940 F.2d
1491, 1495 (11th Cir. 1991).
It
is not alleged that any of the supervisors actually participated in or ratified
the unconstitutional conduct. Nor is there evidence of a widespread problem of
constitutional-level abuses occurring at the Montgomery County Detention
Facility. Therefore, the court is
looking for evidence that these supervisors developed policies that evidenced a
deliberate indifference to inevitable violations of constitutional rights.
The
court finds it expeditious to discuss all of the arguments made by Haggard as
to the supervisory liability of various defendants under this count rather than
under the substantive counts discussed above. Based on this court's sifting of
the complaint and the relevant briefs, Haggard has raised basically four
failures of supervisory personnel that allegedly arise to the level of
constitutional violations, compensable under § 1983: (1) the lack of a policy
requiring the nurses to follow up on any indication of mental illness in the
screening report, for example, by requesting the prior medical records of the
detainee, (2) the lack of a policy to have anyone on staff or on call trained
in the recognition, care, or treatment of mentally ill inmates, (3) the lack of
a policy distinguishing between mentally ill or suicidal inmates and regular
inmates in the use of force or extraction techniques, (4) a general lack of
training on the proper use of force.
As
to the first alleged policy deficiency, the Montgomery County Detention Facility did have a policy
designed to help officers recognize "special handling" issues,
including mental illness, for inmates during the intake process. Nurses were
also required by policy to screen new inmates, including asking whether they
had been treated for mental health problems and whether they had attempted suicide. This policy also required
nurses to determine independently, based on their observations of the inmate,
whether the inmate appeared suicidal. When an inmate requests treatment or
appears unstable, during intake or otherwise during his incarceration, it is
the policy and practice of the nursing staff to recommend mental health
evaluations.
It
is undisputed that there were no incidents involving Haggard that should have
triggered a knowledge on the part of jail officials as to Haggard's mental
illness before his breakdown on October 11. The question presented, then,
really is whether the lack of a requirement to follow-up for inmates who only
acknowledge past mental-health problems or evaluations for mental-health
problems indicates a constitutionally deficient policy. What the plaintiff
truly asserts is that there must be a policy of obtaining the medical records
of any inmate that winds up at the Montgomery County Detention Facility, and
this court finds that the lack of such a policy is not enough for supervisory
liability under § 1983. Starcher v.
Correctional Medical [*1234]Systems, Inc., 7 Fed. Appx. 459, 466 (6th Cir.
2001); Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990).
The
plaintiff also contends that the failure of the Montgomery County Detention
Facility to have a mental health professional on call or on staff amounts to a
constitutionally defective policy. Of course, municipal jails are not required
to provide on-site psychiatric care for their inmates. Young v. City of
Augusta, Georgia, 59 F.3d 1160, 1171 (11th Cir. 1995). However, if it is proved
that a policy of deficiencies in staffing or procedures results in an inmate
effectively being denied necessary medical care, liability may attach. Thomas
v. Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988). As outlined above, the
detention facility did have in place a number of policies that attempted to
identify suicidal or mentally ill inmates during intake and to properly provide
for their safe incarceration. In
addition, it was the practice of the detention facility to refer to a mental-health
professional inmates who appear to be mentally unstable or who request
treatment. These policies and practices do not reveal the sharp denial of
mental-health treatment that the plaintiff in this case tries to make out.
The
Supreme Court has held that there is no obvious need to train police officers
in diagnosing or treating mental illness. City of Canton v. Harris, 489 U.S.
378, 396-97, 109 S. Ct. 1197, 1209 (1989); Young, 59 F.3d at 1171-72. This
axiom is easily extended to the third contention of the plaintiff, focusing on a
failure to train the officers to distinguish mentally ill inmates in order to
apply a different type or procedure for the use of force or for cell
extraction. The lack of training in this area is not sufficient for supervisor
liability under § 1983.
As
to the fourth policy, there is an obvious need to train officers in the proper
use of deadly force. The question of whether deadly force is appropriate is an
example of a recurrent situation that jailers, in particular, are likely to
face, and a situation in which a lack of training can obviously lead to the
denial of constitutional rights. City
of Canton, 489 U.S. at 390 n.10, 109 S. Ct. at 1205 n.10. However, it is
apparent that the detention facility has developed and employs sufficient
standards on this issue to meet the constitutional requirements. These policies
included warnings on the dangers of positional asphyxia. The supervisors should
not be held liable, though policies were in place, for the individual
wrongdoing of its employees in contravention of those standards. There has been
no evidence presented that the misuse
of force is an endemic problem at the detention facility, and therefore the
court cannot conclude that the fact that the detention facility's policies were
not being followed by its officers was brought to the attention of the
supervisory staff.
Therefore, there is no basis on which the claims against the supervisory
personnel should proceed to trial.
D.
Medical Malpractice (Count Four)
The
complaint alleges that Nurse McElroy and Baptist Health Center violated the
Alabama Medical Liability Act by "failing to make further inquiry,
investigation, analysis, and/or effort to discover and/or determine the details
of Haggard's mental illness," and "failing to treat and/or request
treatment and/or evaluation of Mario Haggard for the mental illness."
Third Amended Complaint, P 46. Baptist Health is further alleged to have
violated the statute by failing to train and supervise McElroy with respect to
the treatment of mentally ill patients and the proper medical screening of
inmates at the detention facility. Id. P 47. Therefore, the crux of the
state-law claim against these defendants is the failure to properly screen and
treat [*1235] Haggard for mental illness. According to the plaintiff, these
failures proximately caused Haggard's psychological episode, injury, and death
on October 11, 2001.
A
plaintiff under the Alabama Medical Liability Act must ordinarily present
expert testimony from a similarly situated health provider to illustrate (1)
the appropriate standard of care, (2) a deviation in this case from that
standard of care, and (3) that the deviation proximately caused the injury in
this case. Lyons v. Walker Regional Med. Ctr., 791 So.2d 937, 942 (Ala. 2000).
The appropriate standard of care turns on the existence of a provider-patient
relationship; without this relationship,
there is no breach of standard of care that can support liability under
the statute. Wilson v. Teng, 786 So.2d
485, 498-99 (Ala. 2000).
McElroy
and Baptist Health contend that the medical claim is barred by the statute of
limitations and that, in any event, the plaintiff has failed to present
substantial evidence to make out the claim.
1.
Statute of Limitations
The
statute of limitations for a cause of action under the Alabama Medical
Liability Act is two years. 1975 Ala. Code § 6-5-482(a). This period runs from
"the act, or omission, or failure giving rise to the claim." Id.
However, if the cause of action could not be discovered within two years from
the act or omission, the statute allows the claim to be filed within six months
of discovery. 1975 Ala. Code § 6-5-482(a). Id.
The
statute of limitations begins to run when the first injury or harm occurs,
although the injury may later become more severe or different in kind. Free v.
Granger, 887 F.2d 1552 (11th Cir. 1989) (finding that cause of action accrued
when patient first had infection, not when treated by the doctor); Ramey v.
Guyton, 394 So.2d 2, 4 (Ala. 1980) (finding that cause of action accrued when
patient had stroke, not when doctor last saw patient and prescribed medicine).
The harm in this case occurred on October 11, 1999, the day on which Haggard
had a mental breakdown and died as a result of asphyxiation. As the claim under
the Alabama Medical Liability Act was filed against these defendants on September 13, 2001, the
two-year statute of limitations is not a bar.
2.
Failure to Present Expert Testimony
However, expert testimony is generally necessary in a claim under the
Alabama Medical Liability Act, as the particular standard of care and its
breach must be identified by one with knowledge of the area. Lyons, 791 So.2d at 942. While the plaintiff
presents evidence that the conduct of Nurse McElroy may have breached protocols
of the Montgomery County Detention Facility, no evidence has been presented
that the conduct breaches general standards of medical care. It is clear that
the testimony cited by the plaintiff is illustrative of what the nurses
considered their duties and responsibilities to be at the detention facility,
not their opinion as to the required nurse standard of care under the Alabama
Medical Liability Act. The court declines to extend their testimony so far as
to support this claim against McElroy. For substantially similar reasons, the
claim against Baptist Health must also fail.
V.
CONCLUSION
It
does appear that the ultimate source of the unfortunate outcome in this case
was the lack of proper mental-health treatment given to Haggard while detained
at the Montgomery County Detention Facility. A significant percentage of
inmates, 15 to 20 % according to several studies, suffer from mental illness
when incarcerated. See, e.g., Justice Resource and Statistics Association,
Crime and Justice [*1236] Atlas 2000, 15-16 (available online at
http://www.jrsa.org/programs/crimeatlas.html). In light of these statistics as
well as the general nature of mental illness, in that those most afflicted are
unable to articulate the nature of their affliction, and, in this case, in
light of the inmate being a juvenile, of less than full maturity and
correspondingly of even less ability to articulate or understand his condition,
it is reasonable to conclude that it is a grave and unfortunate lapse for a
detention facility not to have a dedicated mental-health professional involved
in screening new inmates or detainees and routinely checking, for all inmates,
to see if there are past mental-health records available. However, according to
binding law, this lapse does not amount to a constitutional deprivation;
redress lies not with the courts but rather with the detention facilities
themselves and those responsible for the facilities.
For
the foregoing reasons, it is ORDERED as follows:
(1)
The motions for summary judgment filed by all defendants on July 27, October 10
and 12, and November 2 and 5, 2001 (Doc. nos. 50, 93, 99, 115, & 116), and
January 7, 2002 (Doc. no. 143), are granted as to all claims and all defendants
except the plaintiff's deliberate-indifference-to-serious-medical-needs claim
against defendant correctional officers Silas Orum, III, James Thrift, Darryl
N. Wood, Jeffrey Sanderson, and Clarence Wilson, as asserted under the
fourteenth amendment.
(2)
Judgment is entered in favor of all defendants and against plaintiff on all
claims except the fourteenth-amendment
deliberate-indifference-to-serious-medical-needs claim against defendant
correctional officers Orum, Thrift, Wood, Sanderson, and Wilson.
(3)
This case will proceed to trial on only the plaintiff's fourteenth-amendment
deliberate-indifference-to-serious-medical-needs claim against defendant
correctional officers Orum, Thrift, Wood, Sanderson, and Wilson.
DONE, this the 12th day of April, 2002.
MYRON H. THOMPSON
UNITED STATES DISTRICT JUDGE
FOOTNOTES
n1 The relevant complaint is
the third amended complaint, filed by the plaintiff on September 24, 2001 (Doc.
no. 76).
n2 This evidence was the subject of a motion to strike filed by
defendants on October 15, 2001 (Doc. no. 100). That motion was denied by this
court on November 20, 2001 (Doc. no. 122), and a reconsideration motion filed
on December 5, 2001 (Doc. no. 126), was denied on December 7, 2001 (Doc. no.
127), with assurance given to the defendants in both instances that their
arguments as to the weight of this evidence would be pondered at summary
judgment.
n3 No predicate has been
laid for this evidence to be admissible under the party-opponent non-hearsay
rule; Dr. Lauridson does not identify the maker of the statement.
n4 Defs.' Mot. for Sum. J.,
Exh. (Order of Transfer), attached to affidavit of Larry Haverland.
n5 Pl.'s Opp'n to Mot. for
Sum. J., Exh. 17 (Admission Data - Inmate's Medical Record). Haggard's initial
intake paperwork, signed by Officer "Davis," does not indicate a
mental health problem. "No" is circled on this form in response to
"Suicide Tendencies/Ideations" and "Mental Health
Problems." However, "Yes" for "Past treatment for mental
health problems," and "Yes" for "Use of Psychotropic
Medication is indicated. Id., Exh. 10 (Montgomery County Detention Facility 2-4
Intake Classification).
n6 Id. Exh. 17.
n7 Id., Exh. 51, at 2.
n8 Id. Exh. 68, at 30-32
(Deposition of Carmelita McElroy).
n9 Id., Exh. 69, at 66-68
(Deposition of Vollie Boddie).
n10 Id. at 131-34.
n11 Shirley Rainey was
voluntarily dismissed as a defendant in this case, by order of the court on
September 26, 2001 (Doc. no. 79).
n12 Id. at 40-41, 56-57.
n13 Deposition of Vollie
Boddie, at 22-23, 27, 62-63.
n14 Id. Exh. 67, at 88
(Deposition of Shirley Rainey).
n15 Id., Exh. 60, at 92-93,
101, 117, 123, (Deposition of James Thrift); Id., Exh. 61, at 45 (Deposition of
Darryl Wood); Id. Exh. 62, at 43-44 (Deposition of Jeffrey Sanderson).
n16 Deposition of Thrift, at
109; Deposition of Orum, at 39.
n17 Pl.'s Second Supp. Opp'n
to M. for Summ. J., Exh. at 56-57 (Deposition of Jeremiah Medders). The
officers say that their goal in entering the cell was to subdue Haggard and
remove him to an isolation cell to prevent him from harming himself and for
eventual medical treatment. Deposition of Thrift, at 112; Deposition of Wood,
at 45; Deposition of Sanderson, at 42.
n18 Pl.'s Third Supp. Opp'n to M. for Summ. J., Exh. 7, at 30-31, 33 (Deposition of Curtis Westbrook); Deposition of Medders, at 58-59.
n19 Deposition of Medders, at 58-60; Pl.'s Third Supp. Opp'n to
M. for Summ. J., Exh. 5, at 32 (Deposition of Herman Cobb).
n20 Deposition of Westbrook,
at 55; Deposition of Medders, at 61. All of the officers deny striking Haggard
or that Haggard struck any of them. Deposition of Thrift, at 124; Deposition of
Wood, at 63; Deposition of Sanderson, at 56-57; Deposition of Orum, at 46.
n21 The autopsy suggests
that some force was applied while Haggard was on the bunk and that the force
prevented Haggard from breathing. Although the officers admit that they subdued
Haggard on his bunk, they deny that they climbed onto or pushed down on
Haggard's back to facilitate his handcuffing, but rather they only held down
his shoulders, legs, and arms. Deposition of Thrift, at 146, Deposition of
Sanderson, at 52-53.
n22 Deposition of Cobb, at
64, 68; Deposition of Medders, at 62. According to the officers, Haggard was
still resisting as he was being carried out of the cell.
n23 Deposition of Cobb, at
58, 63.
n24 Pl.'s Opp'n to M. for
Summ. J., Exh. 76 (Videotape of October 11, 1999, incident). According to the
officers, Haggard was carried out of his cell because he was non-compliant and
was resisting being escorted out by the officers.
n25 Id. A shorter route was
available, but the officers took the longer route, either for safety reasons or
to avoid the other inmates, depending on whose story you believe. The officers
say they used the longer route because the stairwell in that direction was
wider, dry, and less steep than the wet metal steps near Haggard's cell. The
inmates say that the officers used the longer route to hide the fact that
Haggard was not moving.
n26 There is, of course, a
question as to whether the officers knew or should have known before this time
that Haggard was not breathing and, indeed, there is a question as to at what
point Haggard became unconscious and stopped breathing. In the context of these
motions for summary judgment, the court has highlighted the evidence tending to
show Haggard's unconsciousness before he was removed from the cell. However,
the officers first admit to realizing that Haggard was not breathing upon their
arrival in the 4 North hallway.
n27 Videotape of October 11,
1999, incident.
n28 Pl.'s Opp'n to M. for
Summ. J., Exh. 57, at 10, 14 (Grand Jury Testimony of Dr. James Lauridson).
n29 Id. at 14.
n30 Id. at 12-14.
n31 Id. at 13.
n32 The Hamm court reached
this result because it perceived the danger in forcing courts and prisons to evaluate
slight differences in the allowable conditions imposed upon pretrial detainees
and regular inmates, as most modern jails house both groups. 774 F.2d at 1574. With regard to the basic
needs of either group, "life and health are just as precious to convicted
persons as to pretrial detainees," and the protections and analysis of the
eighth amendment are sufficient. Id.