Ernst v. Creek County Public Facilities , 697 F. App'x 931 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 19, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MICHELLE ERNST, as personal
representative of the estate of David
Michael Ernst, deceased,
Plaintiff - Appellant,
v. No. 16-5148
(D.C. No. 4:14-CV-00504-GKF-PJC)
CREEK COUNTY PUBLIC (N.D. Okla.)
FACILITIES AUTHORITY,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
David Michael Ernst was held at the Creek County Criminal Justice Center
while awaiting trial and sentencing. A few days after being sentenced to thirty-
six years in prison, Ernst hanged himself in the jail’s bathroom. Ernst had been
evaluated for suicidal thoughts several times while at the jail, but was not on
suicide watch when he took his own life.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Ernst’s Estate sued the jail, asserting violations of his Eighth Amendment
rights under 42 U.S.C. § 1983. The district court granted summary judgment in
favor of the jail. We affirm. On appeal, the Estate points to two shortcomings
that allegedly give rise to municipal liability: First, the jail had a practice of
allowing unqualified medical personnel to perform suicide evaluations, and
second, the jail’s administrator failed to adequately supervise its medical
contractor. But the Estate fails to demonstrate that these shortcomings amount to
a constitutional violation.
I. Background
When Ernst was booked into the Creek County jail in August 2013, he
informed the staff that he was suicidal and taking medication for mental health
issues. At the time Ernst was imprisoned, the jail had a contract with Advanced
Correctional Healthcare (ACH) to provide medical and mental health services to
inmates. 1 Upon booking, Amanda Spriggs, a licensed professional counselor
(LPC) and an employee of ACH, evaluated Ernst for suicide risk, placed him on
suicide watch, and then released him from suicide watch a couple days later.
In May 2014, Ernst’s family contacted the jail and stated that Ernst needed
additional mental health treatment. Spriggs evaluated Ernst again and concluded
1
ACH is no longer a party to this appeal. After ACH reached a
confidential settlement with the Estate, Aplt. Br. at 2 n.1, the Estate dismissed its
claims against ACH with prejudice. App. 350.
-2-
that he was not suicidal. She believed Ernst was suffering from PTSD, however,
and recommended that he be evaluated by a physician. Spriggs also gave Ernst a
teaching guide on coping skills and planned to continue to monitor him.
On June 11, 2014, the day before Ernst was scheduled to be sentenced in his
criminal case, another inmate notified the jail that he appeared suicidal. A staff
member interviewed Ernst, but decided not to place him on suicide watch. The
next day, June 12, Ernst received a thirty-six year prison sentence. The sheriff’s
deputy who transported Ernst back to the jail after his sentencing informed the jail
that Ernst needed to be put on suicide watch because Ernst had said that he wanted
to be run over by the deputy’s vehicle. When Ernst arrived at the jail, he was
evaluated by ACH employee Pam Hibbert, a licensed practical nurse (LPN).
Hibbert concluded that Ernst did not appear suicidal, showed no signs of being
depressed, and had in fact asked not to be placed on suicide watch because he did
not want to be away from his friends. Neither Hibbert nor any other ACH or jail
employee placed Ernst on suicide watch at that time.
Five days later, in the early morning hours of June 17, 2014, Ernst
committed suicide by hanging himself in a shower stall.
The Estate sued the jail, claiming violations to Ernst’s Eighth Amendment
rights under 42 U.S.C. § 1983. The district court granted summary judgment to
the jail, and the Estate appealed.
-3-
II. Analysis
The Estate contends the district court erred in two ways: (1) Ernst’s
constitutional rights were violated because the jail had a practice and custom of
allowing unqualified medical personnel to perform suicide evaluations; and (2) the
administrator of the jail failed to adequately supervise its outside contractor, ACH.
A municipality may not be held liable under § 1983 solely because of
injuries inflicted by its employees or agents. Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). Instead, a municipality is only liable under § 1983 for its
own unconstitutional or illegal policies. Barney v. Pulsipher, 143 F.3d 1299, 1307
(10th Cir. 1998). A plaintiff alleging a municipal liability claim must therefore
identify a government policy or custom that caused the injury and then
demonstrate “that the policy was enacted or maintained with deliberate
indifference to an almost inevitable constitutional injury.” Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013). A municipal
policy or custom can be a formal regulation, an informal custom that develops into
a well-settled practice, or deliberately indifferent training or supervision. Id.
at 770; see also Bryson v. Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010)
(describing additional municipal policies or customs).
The Eighth Amendment requires prison officials to “take reasonable
measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S.
825, 847 (1994). We treat municipal liability claims arising out of an inmate’s
-4-
suicide as claims based on the failure of prison officials to provide adequate
medical care for the prisoner. We consider these claims under the “deliberate
indifference to serious medical needs test.” Cox v. Glanz, 800 F.3d 1231, 1247–48
(10th Cir. 2015); see also Barrie v. Grand Cty., 119 F.3d 862, 866 (10th Cir.
1997). The deliberate indifference test has both objective and subjective
components, and death (and therefore suicide) is recognized as a sufficiently
serious harm to satisfy the objective standard. Martinez v. Beggs, 563 F.3d 1082,
1088 (10th Cir. 2009). The subjective prong of the test requires the plaintiff to
present evidence of the prison official’s state of mind, and is met only if “the
official ‘knows of and disregards an excessive risk to inmate health or safety.’”
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S.
at 837). It is not enough for an official to merely be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists; rather, the
official ‘must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837).
We review the Estate’s municipal liability claims de novo and apply the
same summary judgment standard as the district court employed below. Adler v.
Wal-Mart Stores, 144 F.3d 664, 670 (10th Cir. 1998).
The Estate first argues that the jail is liable for violating Ernst’s Eighth
Amendment rights because individuals other than a licensed physician or
psychiatrist were permitted to evaluate whether Ernst was suicidal.
-5-
This claim is without merit. Even assuming for purposes of argument that
the jail had a “policy” of allowing LPNs and LPCs to conduct suicide evaluations,
Ernst provides no authority (and we are aware of none) for the proposition that an
inmate’s Eighth Amendment rights are violated if a medical professional other
than a licensed physician or psychiatrist makes suicide watch determinations.2
Absent a constitutional requirement that only licensed physicians or psychiatrists
may conduct suicide evaluations, it cannot be said that the jail was deliberately
indifferent to the risk of Ernst’s suicide by permitting LPNs and LPCs to
determine whether he belonged on suicide watch. In a case involving similar
facts, the court in Minix v. Canarecci, 597 F.3d 824 (7th Cir. 2010), rejected a
municipal liability claim that an employee “who had experience but no formal
licensure in mental health treatment” was unqualified to assess patients for suicide
evaluations. Id. at 828, 833. 3
2
The Estate does not appear to challenge the designation of LPNs and
LPCs as medical professionals under Oklahoma law, and for good reason. Under
Oklahoma law, LPNs are medical professionals who are required, “under the
supervision or direction of a registered nurse [or] licensed physician,” to
“contribut[e] to the assessment of the health status of individuals.” 59 Okla. St.
§ 567.3a(4). LPCs are also medical professionals, and they are specifically
trained in mental healthcare. They are required under Oklahoma law to “provide
the proper diagnosis of mental disorders in their clients” and possess a master’s
degree in counseling or a graduate degree in a mental health field. See 86 Okla.
Admin. Code 86:10-3-2(c) and 86:10-9-1.
3
The Estate’s argument was muddled further at oral argument. There, the
parties agreed that the jail’s policy was that any employee—medical professional
or otherwise—could place an inmate on suicide watch, but that only a medical
(continued...)
-6-
The Estate’s second municipal liability claim is that the jail’s administrator,
Kelly Birch, deliberately failed to oversee the medical services contractor, ACH,
and that this conduct constitutes an act of deliberate indifference by the facility.
The parties dispute whether Birch held healthcare staff meetings in accordance
with jail policy. But again, even assuming it is true that Birch failed to hold the
appropriate meetings, the Estate’s claim still fails. The Supreme Court has held
that simply failing to follow jail policies is not a constitutional violation in and of
itself. See Davis v. Scherer, 468 U.S. 183, 194 (1984). And the Estate has
provided no evidence that if the healthcare staff meetings were held, Birch would
have been put on notice that ACH was failing to meet Ernst’s medical needs.
Indeed, the facts indicate the opposite. Each time Ernst filed a medical complaint,
ACH addressed his claims. Thus, during a meeting to review healthcare provided
to inmates, it would likely appear to Birch that Ernst’s healthcare needs were
being met. Perhaps ACH was not providing Ernst with adequate healthcare, but
the Estate does not make that claim here. Instead, the Estate argues failure of
3
(...continued)
professional could take an inmate off suicide watch. But it is not clear whether
the jail had a “policy” regarding who could conduct suicide evaluations once a
fellow inmate or outsider notified the jail that they believed an inmate was
suicidal. To the extent that the Estate argued in its briefs that only licensed
physicians or psychiatrists can make those determinations, it undercut that claim
at oral argument by conceding that Spriggs, a licensed professional counselor,
was qualified to evaluate Ernst.
-7-
oversight. And the Estate has not alleged a genuine issue of fact in support of its
argument that Birch was deliberately indifferent to Ernst’s medical needs.
In sum, the district court did not err in granting summary judgment in favor
of the facility.
III. Conclusion
This is undeniably a tragic case. But tragedy alone does not give rise to a
§ 1983 claim. Since the Estate has failed to carry its burden under our municipal
liability precedents, we AFFIRM the district court’s decision.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
-8-