ALAN RAY YELLOW HORSE,
Special Administrator of the Estate of Frederick Neal Yellow Horse, deceased,
Plaintiff,
v.
PENNINGTON COUNTY;
Don Holloway, as Sheriff of Pennington County; Scott Schuft, as Administrator of the
Pennington County Jail;
and Jill West, as Corrections Officer for Pennington County,
Defendants.
[1999 DSD 9]
United States District Court
District of South Dakota- Western Division
CIV. 97-5074
MEMORANDUM OPINION AND ORDER
Terry L. Pechota, Viken, Viken, Pechota, Leach & Dewell, Rapid City,
SD
Attorney for Plaintiff
James S. Nelson, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid
City, SD
Attorney for Defendants
Filed March 11, 1999
Richard H. Battey, Senior District Judge
I. PROCEDURAL HISTORY
[¶1] On September 4, 1997, plaintiff filed a complaint (Docket #1) alleging that defendants' conduct deprived the decedent, Frederick Yellow Horse ("Yellow Horse"), of various constitutional rights in violation of 42 USC § 1983.(fn1) Defendants filed their first motion for summary judgment on March 16, 1998. As a result, defendants Jill West ("West") and Peggy Severson ("Severson") were determined to be immune from suit in their individual capacities. In addition, the Court concluded that claims against Don Holloway and Scott Schuft in their official capacities were in reality claims against Pennington County. Accordingly, the sole remaining defendant in this action is Pennington County. On January 29, 1999, Pennington County filed a renewed motion for summary judgment (Docket #36). Plaintiff has filed his response and defendant has replied. This Court has jurisdiction pursuant to 28 USC § 1331.
II. FACTS(fn2)
[¶2] Yellow Horse pleaded guilty to DUI charges in May 1994, and was sentenced to 30 days in the Pennington County Jail. Yellow Horse also received an additional 90 days for charges of failure to appear and burglary. Following his initial incarceration in Pennington County Jail, Yellow Horse was transferred to the Human Services Center in Yankton for alcohol treatment. One day prior to his discharge from the Human Services Center, Yellow Horse attempted suicide. Following this attempt, officials from the Human Services Center noted that his suicide attempt may have been done in a manipulative manner in order to avoid serving time in jail.
[¶3] Despite Yellow Horse's conduct, Human Services Center staff recommended that he be discharged and transferred back to Pennington County Jail. On August 24, 1994, the night preceding his transfer, Yellow Horse cut his wrist with a sharp object. Upon being returned to Pennington County Jail, Pennington County officials were informed of Yellow Horse's actions and Yellow Horse was placed on suicide watch. By August 27, however, Yellow Horse was removed from suicide watch and placed in a less secure area of the jail. No mental health expert was consulted prior to the decision to remove Yellow Horse from suicide watch. Shortly thereafter, Yellow Horse was found to be tearful and upset, and on August 28 he was again placed on suicide watch.
[¶4] On the following day, Deputy Severson made the decision to remove Yellow Horse from suicide watch. This decision was made without consulting a mental health expert and without completing a suicide screening form. Yellow Horse was again transferred to a less secure area of the jail. On September 6, 1994, at approximately 8:24 p.m., an inmate informed the deputy on duty (Deputy West) that Yellow Horse had been crying and talking about heaven and hell. At 8:45 p.m. another inmate alerted West to a problem in Yellow Horse's cell. When West unlocked Yellow Horse's cell, it was discovered he had hanged himself. He was immediately cut down and given CPR. No pulse was detected and his eyes were dilated and fixed. An ambulance team arrived around 9:00 p.m. to transport Yellow Horse to the hospital. Upon arrival at the hospital, Yellow Horse was declared dead.
III. SUMMARY JUDGMENT STANDARD
[¶5] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶6] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The Supreme Court has instructed that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 106 S. Ct. at 1356.
[¶7] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 2083 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 U.S. at 468 n.14, 112 S. Ct. at 2083 n.14 (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" plaintiff's theory; defendant meets the burden under Fed. R. Civ. P. 56(c) when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Id. (citations omitted).
[¶8] Finally, should there remain any doubt as to whether the courts continue to harbor any antagonistic feeling toward resolution of summary judgment motions, Chief Judge Arnold in City of Mt. Pleasant, Iowa v. Associated Electric Co-op., 838 F2d 268 (8th Cir. 1988) laid such thoughts to rest. He stated that, "a trilogy of recent Supreme Court opinions demonstrates that we should be somewhat more hospitable to summary judgment than in the past. Id. at 273. See also Midwest Radio Co. v. Forum Pub. Co., 942 F2d 1294, 1296 (8th Cir. 1991). The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those cases that really do raise genuine issues of material fact." Id.
[¶9] Based on the foregoing, the trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing defendants' motion for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).(fn3) Under this trilogy, it is incumbent upon the nonmoving party, based upon the showing set forth by the moving party, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F2d 976, 979 (8th Cir. 1991).
IV. DISCUSSION
[¶10] 42 USC § 1983 protects against constitutional deprivations by "persons" acting under color of state law. Municipalities such as Pennington County are considered "persons" for the sake of § 1983. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611 (1978). In this case, plaintiff alleges that Pennington County officials violated Yellow Horse's Eighth Amendment right to be protected from self-inflicted harm. See Bell v. Stigers, 937 F2d 1340 (8th Cir. 1991).
[¶11] In order to establish liability on the part of Pennington County under § 1983, however, plaintiff must show that a Pennington County maintained a custom or policy which was deliberately indifferent(fn4) to a substantial risk of inmate suicide. See City of Canton v. Harris, 489 U.S.378, 389, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989); see also Liebe v. Norton, 157 F3d 574, 578-79 (8th Cir. 1998). "Locating a 'policy' ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality." Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388, 137 L. Ed. 626 (1997) (citing Monell, 436 U.S. at 694, 98 S. Ct. at 2027).
[¶12] Plaintiff offers a host of steps that Pennington County should have taken to avoid prisoner suicides, and further contends that the failure of Pennington County to implement these precautions was so patently inadequate as to amount to deliberate indifference. The inadequacies cited by plaintiff include allegations that Pennington County (1) failed to maintain a policy regarding when a prisoner should be removed from suicide watch; (2) failed to maintain a policy requiring "continuous" supervision of potentially suicidal prisoners; and (3) failed to provide annual "refresher" suicide prevention training courses for its jail.
[¶13] Plaintiff's claims may be analyzed under the well settled "failure to train" standard. See Liebe, 157 F3d at 578 (noting that an alleged failure of defendant county to have appropriate policies in place is subsumed by plaintiff's failure to train assertion and therefore requires same analysis). To establish liability on behalf of Pennington County due to its alleged failure to develop proper policies and train its employees, plaintiff must meet the well settled three-part test outlined in Canton v. Harris. Under this test, plaintiff must show that (1) the training and/or policies were inadequate; (2) Pennington County had notice that the they were inadequate and acted with deliberate indifference to that inadequacy; and (3) the training and/or policies were the moving force behind the constitutional violation. See Canton, 489 U.S. at 388-89; 109 S. Ct. at 1204-05. If, as the non-moving party, plaintiff fails to make a sufficient showing as to any one of these elements, the Court is required to enter summary judgment against him. See Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.
[¶14] Upon careful review, the Court concludes that plaintiff has not met his burden; even when viewed in the light most favorable to his case, the evidence is insufficient to overcome a motion for summary judgment.
[¶15] A. The Failure to Maintain a Policy for Removal of Prisoners from Suicide Watch
[¶16] Plaintiff asserts that Pennington County's "failure to have a policy for removing inmates from suicide watch constitutes deliberate indifference on the part of the County." To succeed on this claim, plaintiff must show not only that these policies were inadequate, but that Pennington County "had notice that its procedures were inadequate and likely to result in a violation of constitutional rights." Canton, 489 U.S. 396, 109 S. Ct. 1208 (O'Connor, J., concurring); see also Thelma D. by Dolores A. v. Board of Education, 934 F2d 929, 934-45 (8th Cir. 1991).
[¶17] Even assuming plaintiff could demonstrate that Pennington County's procedures for removing prisoners from suicide watch were actually inadequate, plaintiff fails to show that Pennington County had any notice of this adequacy.(fn5) To establish notice, plaintiff may show one of two things. First, notice may be shown where there exists a pattern of constitutional violations which could put Pennington County on notice of a need for better policies and/or training procedures. Canton, 489 U.S. at 397, 109 S. Ct. at 1209 (O'Connor, J., concurring). Second, notice may be implied where a failure to implement such policies is so likely to result in a violation of constitutional rights that the need for appropriate training procedures is patently obvious. Id. at 390 n. 10, 109 S. Ct. at 1205 n. 10.
[¶18] Because no other prisoner had committed suicide at Pennington County Jail prior to Yellow Horse, plaintiff cannot show that there existed a pattern of constitutional violations sufficient to put defendant on notice. See Liebe, 157 F3d at 579. Plaintiff has also failed to point to any evidence which shows implied notice on the part of Pennington County. There is no question that Pennington County maintained a detailed policy for the detection and prevention of prisoner suicides. See Exhibit A, Defendant's Supplemental Brief in Support of Renewed Motion for Summary Judgment ("Defendant's Brief") (suicide prevention policy). Under the terms of this policy, jailers were subject to lengthy initial training on inmate suicide, were trained to assess suicide risks, and were provided guidelines on how potentially suicidal inmates should be monitored. Plaintiff appears to be asking the Court to ignore Pennington County's active attempts at suicide prevention, and to instead focus on a single alleged deficiency. In pursuing this path the Court would be engaging in a 20/20 hindsight analysis of the events in question. The Court declines to do this.
[¶19] Given the fact that the Pennington County Jail had recently been evaluated and accredited by the American Correctional Association ("ACA"), its extensive set of training procedures and policies regarding prisoner suicide prevention, and the fact that Yellow Horse was the first prisoner suicide, no reasonable juror could conclude that Pennington County's failure to maintain a policy regarding the removal of prisoners from suicide watch was so likely to result in a violation of constitutional rights as to put Pennington County on notice. See Id. Because plaintiff has failed to show that Pennington County was on notice of any inadequacies in its procedures, the Court need not address whether defendant's actions could be considered to have been deliberately indifferent.
[¶20] Plaintiff also urges that Pennington County's failure to maintain a policy for the removal of prisoners from suicide watch resulted in a custom and practice of jailers making "gut feeling" decisions (without consulting a mental health professional) regarding when an at risk prisoner should be removed from suicide watch. Plaintiff states: "The custom or policy of [Pennington County Jail] ... for removing an inmate from suicide watch is highly indicative of deliberate indifference." See Plaintiff's Brief in Response to Defendant's Supplemental Brief in Support of Renewed Motion for Summary Judgment ("Plaintiff's Response") at 9. In order to state a claim based on an allegedly unconstitutional custom, however, plaintiff must show that Pennington County was deliberately indifferent to, or gave tacit approval of, the existence of a continuing and widespread pattern of unconstitutional misconduct after notice to the officials of the alleged misconduct. See Ware v. Jackson County, Missouri, 150 F3d 873, 880 (8th Cir. 1998); see also Jane Doe A v. Special Sch. Dist., 901 F2d 642, 646 (8th Cir. 1990). Plaintiff has simply failed to set forth a genuine issue of material fact as to whether or not Pennington County ever received notice of such alleged misconduct. Indeed, it is undisputed that no prisoner had ever committed suicide prior to Yellow Horse. Accordingly, it is impossible for plaintiff to prove that Pennington County was deliberately indifferent to, or gave tacit approval of a custom of improper decisions regarding the removal of prisoners from suicide watch.
[¶21] B. The Failure to Require Continuous Supervision of At Risk Prisoners
[¶22] Because Pennington County Jail policy required the monitoring of suicide risks at 30, 15, and 5 minute intervals, plaintiff, through his expert Joseph R. Rowan ("Rowan"), contends that Pennington County's Jail administrators improperly trained jail staff because their training policy "ignored ACA's life-safety suicide prevention Standard 3-ALDF-3D-08 which requires continuous monitoring of all suicide risks." See Plaintiff's Response at 10. Again, this Court resists the urge to examine the training of Pennington County jailers with the benefit of 20/20 hindsight. Given the three-part test outlined in Canton, plaintiff's claim cannot overcome the motion for summary judgment.
[¶23] Plaintiff need prove more than "that an injury or accident could have been avoided if an officer had had better or more training." City of Canton, 489 U.S. at 389, 109 S. Ct. at 1206.
Rather, plaintiff must show that "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [County] can reasonably be said to have been deliberately indifferent to the need." Id. at 389, 109 S. Ct. at 1205. No such showing has been made in this case. As has already been noted, Pennington County Jail had recently been accredited by the ACA following a lengthy inspection that included a review of the jail policy regarding the monitoring of at risk prisoners. In addition, the jail had not allowed a prisoner suicide prior to Yellow Horse. Even assuming that Pennington County's policy and training in this regard was inadequate, plaintiff simply cannot show that defendant was on notice of these deficiencies and therefore acted in a manner that was deliberately indifferent to a high risk of inmate suicide. Accordingly, it is the conclusion of this Court that no reasonable juror could find that Pennington County's training policy regarding inmate monitoring was so patently inadequate as to establish deliberate indifference. See Liebe, 157 F3d at 579.
[¶24] C. Failure to Provide Semi-annual "Refresher" Courses in Suicide Prevention
[¶25] Finally, plaintiff asserts that Pennington County's failure to implement refresher courses in suicide prevention was either inconsistent with its own written policy and standard practice or was in and of itself deliberately indifferent. The Court finds this claim to be unavailing. Once again, plaintiff is asking the Court to ignore the extensive and heretofore largely successful policies of Pennington County Jail in preventing inmate suicide, and to instead focus on a single alleged shortcoming, that is, the failure of Pennington County to hold semi-annual refresher courses in suicide prevention. For the very same reasons discussed above, the Court will not engage in such a speculative process. Even assuming plaintiff has shown (which he has not) that a failure to require refresher courses in suicide prevention was an inadequacy in Pennington County's training procedures, no reasonable juror could conclude that "'the need for more or different training [was] so obvious and the inadequacy so likely to result in the violation of constitutional rights, that the [County] . . . can reasonably be said to have been deliberately indifferent.'" Id. (quoting Canton, 489 U.S. at 390, 109 S. Ct. at 1197).
V. CONCLUSION
[¶26] In summary, the plaintiff has failed to point to any material facts evidencing that Pennington County's policies and procedures were inadequate. Even assuming that inadequacies did in fact exist, plaintiff has failed to indicate how Pennington County was on notice of these inadequacies, and therefore how Pennington County acted with deliberate indifference toward Yellow Horse's constitutional and statutory rights. Finally, plaintiff's assertion that Pennington County Jail permitted a custom or practice of constitutionally violative acts on the part of its jailers is likewise unavailing. Accordingly, it is hereby
[¶27] ORDERED that defendant's renewed motion for summary judgment (Docket #36) is granted. Judgment shall be entered in favor of Pennington County.
Footnotes
1. Plaintiff also asserted various state law claims. These claims were dismissed by this Court (Docket #27) on defendants' first motion for summary judgment.
2. For a more detailed recitation of the facts, see this Court's previous memorandum opinion and order granting partial summary judgment on behalf of defendants (Docket #27).
3. The trilogy of Celotex, Anderson, and Matsushita has redefined the standard for summary judgment previously annunciated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970) and Poller v. Columbia Broadcasting, Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458, 488 (1962). Poller and Adickes run counter to the teachings of Celotex, Anderson, and Matsushita which take issue with the concept that summary judgment is to be used sparingly. See generally William W. Schwarzer, Alan Hirsch, and David J. Barrans, The Analysis and Decision of Summary Judgment Motions: A Monograph on Rule 56 of the Federal Rules of Civil Procedure, Federal Judicial Center, at 4 (1991).
4. The term "deliberate indifference" has been said to entail "something more than mere negligence" but "something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." See Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994).
5. The Court notes that Pennington County Jail was accredited by the American Correctional Association less than one year prior to Yellow Horse's suicide. Pennington County Jail policies were examined at that time and determined to be, in fact, quite adequate.