Dolihite v. Maughon , 74 F.3d 1027 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-6343.
Michael Leroy DOLIHITE, Individually and as Father and Next
Friend of David Michael Dolihite; Joyce Mary Dolihite,
Individually, Plaintiffs-Appellees,
v.
Robert MAUGHON, M.D., Deceased, By and Through Mary Fay VIDEON,
as Executrix of the Estate of Robert Maughon, M.D.; Royce G. King,
Individually; R. Emmett Poundstone, III, Individually; Anthony R.
Dykes, Individually; Bradley Mazick, Individually; Karen Jurls,
individually; Andrew McBride, Individually; Chester Jenkins,
M.D.; Medical Money Management, Inc., Defendants-Appellants,
The Alabama Department of Mental Health; Eufaula Adolescent
Center; Neuropsychiatry Associates, P.C.; Medical Management,
Inc., Defendants.
Jan. 23, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-92-H-1398-N), Truman M. Hobbs,
District Judge.
Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.
ANDERSON, Circuit Judge:
The appellants in this § 1983 action argue that the district
court erred in denying them summary judgment on the basis of
qualified immunity. We affirm the district court's denial of
summary judgment as to one of the appellants, Karen Jurls. We
reverse the district court's order as to the remaining appellants;
we hold that they are entitled to summary judgment on qualified
immunity grounds.
On February 17, 1991, the Baldwin County Juvenile Court,
having adjudged David Dolihite in need of supervision, ordered
David committed to the Eufaula Adolescent Center ("Eufaula"), a
facility of the Alabama Department of Mental Health and Mental
Retardation ("ADMHMR"). David was not admitted to Eufaula until
almost a year later, on January 13, 1992. He was fifteen years
old. Approximately seventy days after his arrival at Eufaula,
David hung himself. Although he was resuscitated, the injury he
sustained during his suicide attempt left him severely
brain-damaged.
David's parents, individually, and David's father, as his next
friend ("the plaintiffs"), brought this § 1983 action against
various mental health professionals and administrators working for
or under contract with ADMHMR. The individual defendants include:
Bradley Mazick, Ph.D., Eufaula's clinical director; Karen Jurls,
a Eufaula social worker; Andrew McBride, a licensed psychologist
with Eufaula; Medical Money Management, Inc., a private
corporation under contract with ADMHMR to provide psychiatric
1
services to Eufaula; Drs. Robert Maughon and Chester Jenkins,
psychiatrists in the employ of Medical Money Management, Inc.;
Anthony Dykes, Eufaula's director; Emmett Poundstone, ADMHMR
Associate Commissioner for Mental Health; and Royce King, ADMHMR
Commissioner.
The Dolihites allege that the defendants violated David's
substantive rights under the due process clause of the Fourteenth
Amendment set forth in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct.
1During the course of this litigation, Dr. Maughon died.
After this event, the plaintiffs amended their complaint
substituting the name of Mary Fay Videon, the executrix of his
estate for Dr. Maughon's name. For the sake of simplicity and
brevity we will refer to Dr. Maughon with the understanding that
our holding applies to the now-named defendant, Mary Fay Videon.
2452, 73 L.Ed.2d 28 (1982),2 i.e., his right to reasonably safe
conditions of confinement, freedom from unreasonable bodily
restraints, and such minimally adequate training as might be
required to ensure safety and freedom from restraint. Id. 457 U.S.
at 315-17, 102 S.Ct. at 2458-59. Discovery was completed. The
defendants all moved for summary judgment on qualified immunity
grounds. The district court denied their motions. Dolihite v.
Videon, 847 F.Supp. 918 (M.D.Ala.1994). The defendants-appellants
3
brought this interlocutory appeal. We have jurisdiction.
2
Although Youngberg involved a civilly committed mentally
retarded person, this circuit has interpreted the Youngberg
holding to apply to involuntarily, civilly committed mental
patients. See, e.g., Wooten v. Campbell, 49 F.3d 696, 701 (11th
Cir.1995) ("In Youngberg..., the Court extended the Estelle
analysis holding that the substantive component of the Fourteenth
Amendment's Due Process Clause requires the state to provide
involuntarily committed mental patients with such services as are
necessary to ensure their "reasonable safety' from themselves and
others."); Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir.1994)
("In Youngberg, the Court created the general legal principle
that persons who are involuntarily committed to state mental
institutions have a right to safe conditions, freedom from bodily
restraint, and a right to minimal training.")
3
Neither party challenges our jurisdiction under the recent
Supreme Court opinion, Johnson v. Jones, --- U.S. ----, 115 S.Ct.
2151, 132 L.Ed.2d 238 (1995). After careful review, we conclude
that we have jurisdiction of this appeal. In Johnson, the only
argument made on appeal by the public official seeking qualified
immunity was that the district court erred in concluding that
there was a genuine issue of fact as to the official's
involvement in the act. The act itself was a violation of
clearly established law. The Court noted that this "evidence
insufficiency" issue was different from the qualified immunity
issue held to be immediately appealable in Mitchell v. Forsyth,
472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Several
"countervailing considerations" persuaded the Court to decline
extending the rule of immediate appealability to include
"evidence insufficiency" issues. Johnson, --- U.S. at ----, 115
S.Ct. at 2158.
In Ratliff v. DeKalb County, Georgia, 62 F.3d 338 (11th
Cir.1995), this court addressed an issue similar to that in
Johnson v. Jones. After accepting jurisdiction and
resolving one claim for qualified immunity, the court
addressed the public officials' claim of qualified immunity
with Note 3—Continued respect to Ratliff's claim of gender
discrimination. The public officials' only argument with
respect to this claim of qualified immunity was that the
record did not support any discriminatory intent on their
part. Id. at 341. This court, noting that discriminatory
intent was a necessary element of the underlying
constitutional tort, declined to review the district court's
determination that there was a genuine issue of fact as to
whether appellants acted with discriminatory intent. Like
the nonreviewable issue of fact in Johnson—i.e., whether the
appealing public official was actually involved in the
allegedly unconstitutional beating—the issue of fact on
appeal in Ratliff was also a predicate factual element of
the underlying constitutional tort. Also like Johnson,
Ratliff involved an "evidence insufficiency" issue. See
also, Mastroianni v. Bowers, --- F.3d ----, 1996 WL 17032(11th Cir.1996) ("Insofar as appeals from denials of summary
judgment relate to "factual disputes' or "insufficiency of
evidence' regarding plaintiff's claim, this court lacks
appellate jurisdiction."); Babb v. Lake City Community
College, 66 F.3d 270, 272 (11th Cir.1995) ("An order
determining the existence or non-existence of a triable
issue of fact—the sufficiency of the evidence—is not
immediately appealable.").
Unlike Johnson and unlike Ratliff, the primary argument
of each appealing public official in this case is that a
reasonable public official could have believed that his or
her actions were lawful, in light of clearly established law
and the information possessed by each official. Anderson v.
Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97
L.Ed.2d 523 (1987). This argument raises the core qualified
immunity issue and is, therefore, immediately appealable
under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985), and Johnson.
With respect to several subissues relating to several
of the appellants, in order to evaluate the core qualified
immunity issue presented by each appellant, we have
identified precisely the relevant actions of the appellant
and the relevant information possessed by each, of course,
taking all reasonable inferences in favor of Dolihite. We
are confident we have jurisdiction to do this. Cf. Anderson
v. Romero, 72 F.3d 518, ---- (7th Cir.1995) ("[The issue] is
whether in 1992 the constitutional right of a prisoner in
[plaintiff's] position ... to be free from the specific acts
that the defendants are alleged to have committed was
clearly established...."). As is apparent from the above
statement of the core qualified immunity issue, which
statement was paraphrased from Anderson, 483 U.S. at 639,
107 S.Ct. at 3039, it is necessary to examine the precise
actions of each appellant and the precise information
possessed by each appellant in order to determine whether a
reasonable public official could have believed that his or
her actions were lawful, in light of clearly established
law.
With respect to several of the mental health
professionals in the instant case, to determine what law is
clearly established, we must undertake a fact-sensitive
examination of controlling case law, particularly Greason v.
Kemp, 891 F.2d 829 (11th Cir.1990). We must then compare
the facts in such case law (which have been determined to be
in violation of the Constitution) with the precise actions
and the precise knowledge of the actors in this case. For
example, appellant Dr. Jenkins in the instant case is
comparable to the psychiatrist in Greason. Dr. Jenkins'
actions, and his knowledge at the time, must be identified
precisely and then compared to the actions and knowledge of
the psychiatrist in Greason. Only if the actions of Dr.
Jenkins, in light of his knowledge, are materially similar
to the actions and knowledge of the psychiatrist in Greason
can it be said that he could not have thought that his
actions were lawful. See Lassiter v. Alabama A & M Univ.,
Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en
banc).
Thus, the identification of the actions and knowledge
of each public official is part and parcel of the core
qualified immunity issue which is immediately appealable.
This inquiry is distinguished from the factual issues found
to be unreviewable in Johnson and Ratliff in at least two
respects. First, in both Johnson and Ratliff, the issue on
appeal involved a predicate element of the underlying
constitutional tort; by contrast, in this case, the issue
we address is the core qualified immunity issue—i.e.,
whether a reasonable public official could have believed
that his or her actions were lawful in light of clearly
established law and the information possessed. Second, in
both Johnson and Ratliff, the challenge on appeal involved
the sufficiency of the evidence to create a genuine issue of
fact; by contrast, in this case each appealing public
official raises the core qualified immunity issue identified
above.
Our conclusion that we have jurisdiction to identify
the precise actions and the precise knowledge of each
appellant is supported by the recent Eighth Circuit decision
in Reece v. Groose, 60 F.3d 487 (8th Cir.1995). In Reece,
the court held that it had jurisdiction "to examine the
facts as they were known to the government official in order
to determine whether clearly-established law would be
violated by his actions," id. at 489, Note 3—Continued
noting that Anderson required acceptance of such
jurisdiction. Numerous other courts appear to have
implicitly assumed such jurisdiction. See, e.g., Lennon v.
Miller, 66 F.3d 416, 422-26 (2d Cir.1995) (undertaking
review of "undisputed facts," i.e., record evidence
concerning the facts underlying plaintiff's claim, to
determine whether police officers' actions were objectively
reasonable); Rodriguez v. Phillips, 66 F.3d 470, 480-81 (2d
Cir.1995) (examining circumstances of prison to determine
whether it was objectively reasonable for the official to
believe plaintiff's administrative confinement did not
violate his constitutional rights); Buonocore v. Harris, 65
F.3d 347, 357 (4th Cir.1995) (noting that, to determine
whether actions violated clearly established law, the court
must examine the facts as alleged by plaintiff); Sanderfer
v. Nichols, 62 F.3d 151, 154-55 (6th Cir.1995) (appellate
court itself identified the relevant actions of the public
official, a nurse, in order to evaluate whether she was
deliberately indifferent to a pretrial detainee's medial
needs); Prosser v. Ross, 70 F.3d 1005, 1006 (8th Cir.1995)
(noting that the district court failed to indicate what
facts it believed to be in dispute and searching the record
for undisputed facts, and also noting that the limitation
imposed by Johnson "will sometimes make it difficult to
determine whether jurisdiction exists because deciding
whether an officer is entitled to qualified immunity
requires a "fact-intensive' inquiry"). We have found no
contrary authority.
Even if we are incorrect in our conclusion that the
identification of the precise acts and knowledge of each
appealing public official is part and parcel of the core
qualified immunity issue, we are satisfied that it would be
"inextricably intertwined" with the core issue, and thus
would be within our pendent appellate jurisdiction. See
Swint v. Chambers County Comm'n., 514 U.S. ----, ----, 115
S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995) (also suggesting
that pendent issue jurisdiction may exist where review of
the pendent issue is necessary to ensure a meaningful review
of the qualified immunity issue); Johnson, --- U.S. at ----
, 115 S.Ct. at 2159 (suggesting that pendent issue
jurisdiction of even evidence insufficiency issues may
exist). When an appealing public official presents the core
qualified immunity issue, we believe that we have pendent
appellate jurisdiction of other issues presented by such
official if the other issues are "inextricably intertwined"
with the core issue. See Blue v. Koren, --- F.3d ----, ----
n. 6, 1995 WL 759536 (2d Cir.1995) (finding that the
district court's ruling that a genuine issue of material
fact remained with respect to the qualified immunity issue
is reviewable under the court's pendant jurisdiction where
Mitchell v. Forsyth, 472 U.S. 511, 525-28, 105 S.Ct. 2806, 2815-16,
it is intertwined with the constitutional claim and is
necessary for a meaningful review of whether the district
court applied the appropriate standard). Every circuit to
address Swint 's reference to "inextricably intertwined"
issues has concluded that such pendent jurisdiction exists.
See, e.g., Kincade v. City of Blue Springs, 64 F.3d 389,
394-95 (8th Cir.1995); Kaluczky v. City of White Plains, 57
F.3d 202, 206-07 (2d Cir.1995); Moore v. City of Wynnewood,
57 F.3d 924, 930 (10th Cir.1995). In this case, even if the
identification of the precise actions and knowledge of each
appellant is not part and parcel of the core issue, as we
believe it is, the above discussion conclusively
demonstrates that the issue is "inextricable intertwined."
Indeed, it is absolutely necessary to identify precisely the
public official's actions and knowledge in order to resolve
the core qualified immunity issue.
Ordinarily, we might simply "take as given" the
district court's identification of each appellant's actions
and knowledge. See Johnson, --- U.S. at ----, 115 S.Ct. at
2159. However, with respect to the appellants in this case
other than Jurls, we cannot conclude that the district
court's identification of the actions and knowledge of each
appellant was adequate. The Supreme Court in Johnson
acknowledged that in such a circumstance, an appellate court
appropriately would have to undertake such identification.
Id. Cf. Rivera v. Senkowski, 62 F.3d 80, 84-85 (2d
Cir.1995) (examining record evidence where district court
failed to articulate an adequate factual basis upon which it
relied in declining to hold defendants immune from suit).
With respect to appellant Jurls, our identification of her
actions and knowledge is consistent with that of the
district court; in other instances, we have made the
identification more precise. Especially in the context of
health care professionals providing medical care, the core
qualified immunity inquiry is exceedingly fact sensitive on
both sides of the coin. On the side of the coin involving
the determination of clearly established law, it is
necessary to identify precisely the acts and knowledge of
the comparable actor in controlling cases. On the side of
the coin involving the actions of the appealing public
official, it is necessary, as we have demonstrated, to
identify precisely the actions and knowledge of the
appealing public official. As we stated in Lassiter v.
Alabama A & M University, Bd. of Trustees, 28 F.3d 1146,
1150 (11th Cir.1994) (en banc), a plaintiff cannot rely upon
general propositions or abstractions to demonstrate a
violation of clearly established law; rather, the facts of
the controlling precedent must be materially similar to
those in the instant case. Id.86 L.Ed.2d 411 (1985).
This opinion will set out the background facts and the
relevant law and then address the entitlement of each defendant to
qualified immunity. In the summary judgment posture of this case,
we take all reasonable factual inferences in favor of the
plaintiffs below. However, the plaintiffs bear the burden of
proof. With respect to each appellant, we have taken the relevant
facts as identified by the district court and supplemented same as
necessary to evaluate whether a reasonable public official could
have believed that the actions of each appellant were lawful, in
light of the clearly established law and in light of the
information possessed by each appellant.
I. BACKGROUND FACTS
In February of 1991, the Baldwin County Juvenile Court
adjudged David Dolihite in need of supervision because of David's
4
problematic behavior at home and at school. The court placed
David in the custody of ADMHMR and instructed the Department to
return the child to the custody of his parents after he
successfully completed the Eufaula program. David continued to
reside, for the most part, with his parents until he was admitted
to Eufaula on January 13, 1992.5
4
At the time of the adjudication David had no juvenile
convictions or history of drug or alcohol abuse. But by March he
had been adjudged delinquent because he drew a knife on someone
at the Boys Home in Robertsdale where he was sent while waiting
to go to Eufaula. As a result of this incident he was again sent
home. When he violated his probation by misbehaving at school,
he was sent to the Hit Program, a Department of Youth Services
Program in Montgomery, Alabama.
5
The district court opinion indicates he was admitted on
this date in 1991, but this appears to have been a typographical
By January 23, 1992, David had been evaluated by three of the
defendants—Dr. Maughon, a psychiatrist, Jurls, a social worker, and
McBride, a psychologist.6 It was determined through these
evaluations that David had reported having attempted suicide,7 had
frequent suicidal ideations, was obsessed with writing poetry about
8
death, and had some family history of suicide. Appellees also
contend that behavior described in David's Baldwin County Mental
9
Health Department evaluation could be construed as psychotic.
After his initial Eufaula evaluations, David was assessed as giving
the "diagnostic impression of conduct disorder solitary aggressive
type."
Ten days after David's arrival, the psychiatrist Dr. Jenkins
error.
6
According to the record, appellant Mazick, the Eufaula
clinical director, did not see David at this point.
7
David told Jurls during her initial interview with him that
he had attempted suicide ten times, that he made his first
gesture in the fourth grade. He also described other attempts
which had occurred within two years of his arrival at Eufaula.
However, Jurls appears to have been skeptical about whether these
attempts ever occurred or at least the nature of the attempts.
"There is some question as to the actual pervasiveness of his
[suicidal] thoughts and whether or not they appear to be more
manipulative in nature or the result of significant clinical
depression." At least one suicide threat was documented in his
Baldwin County Mental Health Center Evaluation. David threatened
suicide in March of 1991 in a poem he gave to a former
girlfriend.
8
Evidence in the record below indicates that David's
grandmother committed suicide; however, the portion of David's
Eufaula record which discusses the incident gives the impression
that David's father's grandmother committed suicide.
9
"He denies hallucinations at this time; however, in a very
detached manner he describes looking in the mirror and seeing no
reflection, seeing hands beckoning him and seeing the ghost of
someone killed in a car wreck."
and appellants McBride and Jurls became members of David's
treatment team and, as such, signed David's master treatment plan.
The treatment plan noted, among other things, that David suffered
an active suicidal ideation and gesture problem, and it prescribed
weekly, thirty-minute individual therapy sessions as well as a
weekly forty-five-minute group session.
David exhibited self-destructive behavior while at Eufaula,
including making suicidal threats and gestures. The following
incidents occurred while David was at Eufaula and are documented in
his Eufaula record unless otherwise indicated. On January 26,
1992, a nurse treated David for a deep puncture wound in his left
wrist. David told the nurse that he "was going to cut his arm off
and kill himself." David was placed on continuous observation,
i.e., one-on-one observation, until the next day when Jurls, after
completing a suicide assessment, moved him to close observation
with one-hour checks.10 On the suicide assessment form, Jurls noted
that David's family did not have knowledge of David's past suicide
attempts and that David's self-reported past gestures could not be
confirmed. In David's Progress Notes, Jurls indicated that his
reported suicidal thoughts were intermittent and without genuine
intent.
10
The nurse apparently refused to give him medication for
pain. In his Progress Notes Jurls wrote, "He claimed to be upset
because Nursing Services did not provide treatment to a small
puncture on his hand." In her suicide assessment of David
conducted the following day, Jurls wrote: "I interviewed him on
1/27/92 and he appeared nondepressed and denied all suicidal
ideation. He was verbal and animated. David did admit to being
frustrated 1/26/92 10:30 pm and reported himself to having only a
fleeting thought of suicide." She then moved him from continuous
observation to close observation status and indicated that he was
to be checked every hour.
In David's Progress Notes dated February 4, Jurls indicated
that David had presented as extremely irrational during the
previous week; she added that he was not out of touch with
reality. On the afternoon of that day, David injured himself,
creating an ulcer one centimeter in diameter on his left wrist. On
February 13, a staff member reported that David wrote with a rock
on the security screen over his window, "Oh, God I want to die,
please take me or I'll commit suicide, Death, Suicide are the facts
of life." David was given work restitution for his behavior but no
additional therapeutic intervention, nor was he prescribed any
medications, and no suicide assessment form was completed.11
On February 18, David was talking to himself and advised a
nurse that he was talking "to a friend who told him what to do."
On February 24, a staff member found David sitting on the floor in
his room beside the figure of a star he had made of salt, cutting
into a sore on the back of his wrist with his belt buckle, and
allowing blood to drip onto the star. David told the staff member
he was a devil-worshipper. David later that day wrote the staff
member a note which indicated that he was not talking because the
devil told him not to. On March 2, Jurls indicated in David's
Progress Notes that he continued to enjoy the "shock value" of
talking about suicide.
On March 8 at about 2:45 p.m., David cut his arm with a piece
of metal. A staff member described the incident in David's
11
In Jurls' affidavit, she said that she performed a
suicidal risk assessment and that David denied suicidal intent;
however, there is no suicide assessment form in record with
respect to this incident.
Progress Notes: "When I arrived in the dorm he was standing in the
bathroom and his left arm in the sink and the H2O running, bleeding
profusely from a cut to his left arm...." David was taken to the
emergency room. The cut required ten stitches and, as indicated by
Jurls on David's suicide assessment form, was "fairly lethal due to
vertical, wide cut and possibility of loss of excessive blood."
Around 4:45 p.m. the same day, David removed the sutures with
his teeth. He told the Eufaula nurse that "he was going to kill
himself and he was not going to have sutures put in" and "would
remove them again." The nurse notified Dr. Jenkins about David's
behavior. Over the phone, Dr. Jenkins prescribed 25 mg of
Vistaril, a tranquilizer, and authorized the use of soft
restraints. David was taken to the emergency room again. Jurls
ordered David placed on continuous, i.e., constant, observation.
The next day Jurls completed a suicide assessment form on
David. According to her notes, David denied suicidal intent,
psychotic symptoms, and feelings of depression, but admitted
self-injurious thoughts due to problems with peers. Although
David's act of cutting himself and pulling his sutures out on March
8 was apparently determined to be a suicidal gesture or attempt,
David was never seen by the psychiatrists or by Dr. Mazick nor was
his treatment plan altered.12 However, Jurls did change his status
12
The affidavits of John Fowler and Billy Kirby, two of
David's fellow Eufaula residents, also indicate that David was
placed in seclusion for removing his sutures. His records
indicate that he was secluded on March 9, but for failure to
follow staff instructions.
This is not the only incident for which David was
secluded. Before his injury, David was sent to seclusion
for a total of about 14 hours. It was apparently common
to close observation with fifteen minute checks. Thereafter, his
observation status was not changed again until the morning of March
24.
On March 15, David was secluded for "failure to follow rules,
bleeding on walls and defecating on floor" in the time-out room.
Once secluded, David continued to spit blood on the walls of the
seclusion area.
On March 18, David stuck a pencil in his wound of March 8. He
was again taken to the emergency room. Dr. Nixon, having treated
David twice for his self-inflicted wound of March 8, requested
David be evaluated by a psychiatrist. She wrote, "This child MUST
be evaluated for anti-psychotic medication."13 Jurls arranged for
David to see Dr. Jenkins the next day.
Dr. Jenkins examined David on March 19. His notes in David's
records state only the following: "This young man has been
engaging in self-destructive behavior. Case reviewed with
therapist and nurse. No current or past evidence of psychosis.
practice at Eufaula to place a disruptive child in various
forms of confinement, the milder version being dorm
restriction which apparently meant that a child could not
leave his dormitory or his dorm room except to attend
classes or meals. Staff members could also place children
in "time-out" which required children be confined in a
particular room with a staff member checking on them every
fifteen minutes. During his time at Eufaula, David was kept
in time-out for approximately 70 hours. Seclusion was a
more serious confinement, an extreme measure. Residents at
Eufaula were apparently secluded individually in a building
separate from the dormitories in one of three small rooms
resemblant of bare jail cells with concrete floors, no
furniture and no heat.
13
Dr. Nixon noted in David's file that the March 18 incident
was the third episode of self-mutilation which had come to her
attention (including the removal of his March 8 stitches).
MS: alert, oriented. Thought orderly. Affect indifferent.
Memory and intellect intact. This difficulty seems behavioral. "I
think I messed up and may be a little bit crazy.' " There is no
further indication in the record of what sort of assessment or
examinations were completed to render this conclusion. David's
treatment plan was not altered.
On Saturday, March 21, at 9:25 p.m., a staff member ordered
David placed in seclusion after David destroyed facility property,
threatened to cut himself with a piece of glass, and stated he was
going to hurt himself if he got the chance.14 While in seclusion,
David beat his head on a wall, cursed loudly and was described as
"totally out of control." The nurse on duty notified Dr. Maughon
over the phone about David's behavior. Dr. Maughon instructed the
nurse to administer 50 mg of Vistaril.
On Sunday, March 22, around 9:30 p.m., a mental health worker
restricted David to the time-out room for destroying facility
property.15 According to the time-out records completed by mental
health worker Allen Forte, David attempted to hang himself at 9:35
p.m. At 9:40 p.m. David was placed in seclusion. According to the
defendants, Forte did not inform his shift supervisor of this
incident, and the supervisor made no mention of it in his shift
14
The social worker on duty stated in David's Progress Notes
that David was secluded for failing to follow staff's directions,
threatening to do harm to himself, inciting a racial riot, and
causing disruption to therapeutic environment.
15
David had torn his closet door off its hinges and had
knocked a hole in it. David told the worker that he had mood
swings and felt like destroying something.
report.16 There is no evidence that the hanging incident was
mentioned in the shift report or that the clinical staff discussed
it at their March 23, morning meeting.
On Tuesday, March 24, at 8:45 a.m., Jurls met with David. The
Progress Notes indicate that the two of them discussed the previous
weekend, specifically David's destruction of property and
aggression. Neither in the Progress Notes themselves nor elsewhere
in David's record is it documented that Jurls knew about the
weekend hanging attempt.17 At that meeting she told David that the
treatment team had met the previous morning and had decided to give
David three days dorm restriction due to his behavior.
Her Progress Notes of March 24 also indicate that she had left
instructions for the dorm staff to take David off close observation
status on the morning of March 21 if March 20 had been uneventful.
According to the Progress Notes, the dorm staff did not receive
that order. Jurls renewed the order effective 1:20 p.m. on March
24.
Although David's records do not reveal that Jurls knew of the
attempted hanging, the plaintiffs presented evidence that Jurls did
know about the incident. A former Eufaula resident, John Fowler,
signed an affidavit stating:
16
The seclusion order indicated that the reasons for
seclusion were David's physical aggression toward staff and his
attempt to pull down a light fixture out of the ceiling. Samuel
Denson, another mental health worker, rather than Allen Forte
filled out the seclusion form.
17
Jurls did write in David's Progress Notes of March 24,
that he "continue[d] to resort to self-injurious behavior when
angered or frustrated" but this might have referred to his
behavior of March 19 (sticking the pencil in his wrist wound) or
his behavior of March 21 (threatening to cut himself).
I was in the time-out room on March 22, 1992.... David did
try to hang himself. Ms. Jurls knew this because the next
day, David and I talked with Ms. Jurls about it. Ms. Jurls
spoke to both of us together about David trying to hang
himself the night before. She knew David had tried to hang
himself and she confronted us together about it and David
admitted it in her presence and in my presence.
At 3:30 p.m. on March 24, after David went off close
18
observation, Dr. Mazick and David had a short discussion during
which Dr. Mazick, apparently not cognizant of David's
self-injurious behavior of the previous weekend, told David that he
had not engaged in self-injurious behavior for several days and
that he "did not see that [David] needed to remain on close
observation."
Shortly afterwards, at 4:10 p.m., David was found hanging in
his dormitory room closet by a shoestring. Emergency CPR was
performed and David was resuscitated. He was then sent to
Children's Hospital in Birmingham where it was determined that he
suffered severe hypoxic brain damage. According to the district
court, as of March, 1994, David remained in serious condition and
functioned at the level of a three-year old.
The record reflects that during David's seventy days at
Eufaula, he received three and one half hours of individual therapy
with Jurls, a social worker, and six hours of group therapy. He
was secluded for a period of fourteen hours, on dorm restriction
for ten days, and in time-out for sixty-four hours. He was only
seen by a psychiatrist twice, once upon admission and again on
18
According to Mazick's affidavit, David expressed an
interest in speaking with Mazick in a seemingly chance encounter
which occurred while David was in the hall outside Jurls' office.
March 19. Dr. Mazick, the staff's Ph.D. psychologist, saw David
briefly on March 24.
In the affidavits of Billy Kirby and John Fowler, as well as
the testimony of Allen Forte, the plaintiffs presented evidence
that at Eufaula there was gang activity, violence between
residents, and abuse by the staff. John Fowler stated that David
came to his room once to hide from gang members, that he told Jurls
that gang members were threatening David, and that staff allowed
gang members to mistreat other residents. He also claimed that the
Eufaula staff hit and cursed at the residents,19 that he had seen
staff members hit David and another resident on numerous occasions,
and that he personally told Dykes, Jurls, and Dr. Mazick about
those incidents. He also asserted that staff members put the
residents in time-out and seclusion for inappropriate reasons. In
sworn testimony, Allen Forte, a former Eufaula employee, testified
that he had seen supervisors strike children and that a
twelve-year-old resident had been sexually abused twice by other
residents.
The appellees also introduced the Eufaula FY 91-92 Advocacy
Report as evidence that violence was rampant at Eufaula. That
report indicated that thirty-three complaints were filed by
residents. However, the report itself does not indicate the
20
substance of more than a few of those complaints. The report
19
He also stated that once a staff member threw Billy Kirby,
another resident, down the stairs.
20
The report did recount the complaints behind some of the
investigations. One resident reported being kicked in the ribs
by another resident; another resident reported being hit in the
face by a staff member; a third resident reported that a staff
focuses instead on whether the investigations of those incidents
were adequate. It concluded that they were not and that staff
needed training on how to conduct proper investigations.
II. DISTRICT COURT'S DECISION
The district court, in denying the defendants' motions for
summary judgment, stated that under the Eighth Amendment "[i]t is
well settled that state governments possess "a constitutional
obligation to provide minimally adequate medical care to those whom
they are punishing by incarceration,' " Dolihite v. Videon, 847
F.Supp. 918, 926 (M.D.Ala.1994) (citing Harris v. Thigpen, 941 F.2d
1495, 1504 (11th Cir.1991)). The court noted that persons
subjected to involuntary civil commitment are " "entitled to more
considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish.' " Id.(citing Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452,
2461, 73 L.Ed.2d 28 (1982)). Thus, the court concluded that Romeo
"
made it clear that the Fourteenth Amendment due process
requirements imposed on state officials who are entrusted to care
for those who have been civilly committed to state institutions are
considerably more rigorous than those imposed under the Eighth
member had threatened to beat him up; a fourth investigation
revealed that a resident might have been secluded as a means of
punishment; and a fifth resident requested a referral to the
nurse for treatment of an injury but was not seen until the
following afternoon. Some investigation accounts were included
as attachments to the Advocacy Report. In one a resident
reported a mental health worker hit him in his mouth; another
indicated that a staff member had been cursing at the residents;
a third concerned the incident in which a resident reported being
kicked in the ribs by another resident; and, a fourth described
an incident in which a resident reported a bruise on his right
eye.
Amendment which are applicable to prisoners." 847 F.Supp. at 926.
The district court, in elucidating the law to be applied, set
forth the rule established in Romeo, which held that "liability may
be imposed only when the decision by the professional is such a
substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment."
457 U.S. at 323, 102 S.Ct. at 2462. The district court also cited
the Eleventh Circuit cases Waldrop v. Evans, 871 F.2d 1030 (11th
Cir.1989), and Greason v. Kemp, 891 F.2d 829 (11th Cir.1990), for
the proposition that it is also well settled that officials in
charge of the care of prison inmates are liable if put on notice of
suicidal tendencies and fail to take reasonable precautions to
prevent suicide. The court reasoned that this rule would
necessarily apply to those trained to care for emotionally
disturbed youths given the Romeo rule that due process rights of
the civilly committed exceed the Eighth Amendment rights of the
criminally incarcerated.
With respect to Jurls, a social worker and David's primary
therapist, the district court focused on the Fowler affidavit which
indicated that Jurls knew about the March 22 attempted suicide.
The court also concluded that a jury could find that she did in
fact read the portion of David's record which indicated that he had
attempted to hang himself. Id. at 931-32. There being evidence
that she knew of the suicide attempt of March 22, but failed to
take steps to prevent David from attempting suicide, the district
court determined that our precedent under Greason dictated a
conclusion that her actions, taken in the light most favorable to
the plaintiffs, would amount to deliberate indifference thus
precluding summary judgment on qualified immunity grounds.
The district court denied the other defendants' motions for
summary judgment. All the defendants here appeal that court's
denial of their motion for summary judgment on qualified immunity
grounds. We first set forth the appropriate qualified immunity
analysis, and then we address the facts and law relevant to each
individual appellant's case.
III. QUALIFIED IMMUNITY
The denial of qualified immunity is a question of law to be
reviewed de novo. Swint v. City of Wadley, 51 F.3d 988 (11th
Cir.1995). Because this is an appeal from the denial of a summary
judgment motion, we must view the facts in the light most favorable
to the plaintiff below. Id.The qualified immunity analysis requires the court to
determine whether a defendant violated clearly established
constitutional law.21 In Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court
explained that qualified immunity protects government officials
performing discretionary functions from civil liability if their
conduct violates no "clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. 457 U.S. at 818, 102 S.Ct. at 2738.
21
The first step of the analysis is to determine whether the
officials were acting within their discretionary authority.
Sammons v. Taylor, 967 F.2d 1533, 1539 (11th Cir.1992). That the
defendants were acting within their discretionary authority is
uncontested here.
Qualified immunity is intended to give officials the ability
to anticipate when their conduct may give rise to liability for
damages. Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034,
3042, 97 L.Ed.2d 523 (1987) ("Where [the qualified immunity] rule
is applicable, officials can know that they will not be held
personally liable as long as their actions are reasonable in light
of current American law."). A plaintiff must establish more than
broad legal truisms; he or she must demonstrate that the law fixed
the contours of the right so clearly that a reasonable official
would have understood his acts were unlawful. Id. at 639-640, 107
S.Ct. at 3039. Thus, "pre-existing law must dictate, that is,
truly compel (not just suggest or allow or raise a question about),
the conclusion for every like-situated, reasonable government agent
that what defendant is doing violates federal law in the
circumstances." Lassiter v. Alabama A & M University, Bd. of
Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc) (emphasis in
the original). Moreover, officials need not " "be creative or
imaginative in drawing analogies from previously decided cases.' "
Id. at 1150 (citations omitted).
In Anderson, the Supreme Court described the qualified
immunity analysis:
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. 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 pre-existing law the
unlawfulness must be apparent.
483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted).
Our courts have applied an objective reasonableness test to
qualified immunity cases. In each circumstance, taking the facts
known to the particular defendant, "the relevant question on a
motion for summary judgment based on a defense of qualified
immunity is whether a reasonable official could have believed his
or her actions were lawful in light of clearly established law and
the information possessed by the official at the time the conduct
occurred." Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499,
1503 (11th Cir.1990).
As a general matter, under Romeo the involuntarily civilly
committed have liberty interests under the due process clause of
the Fourteenth Amendment to safety, freedom from bodily restraint,
and minimally adequate or reasonable training to further the ends
of safety and freedom from restraint. 457 U.S. 307, 102 S.Ct.
2452, 73 L.Ed.2d 28 (1982). In addition, Romeo established that
the involuntarily civilly committed were due a higher standard of
care than the criminally committed; persons subjected to
involuntary civil commitment are "entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish." Id. 457 U.S. at
322, 102 S.Ct. at 2461. Thus, it follows from Romeo that, all
other circumstances being the same, actions of a mental health
professional which would violate a prisoner's Eighth Amendment
rights would also violate the due process rights of the
involuntarily civilly committed.22 An official violates a
22
This holding does not require that public officials " "be
creative or imaginative in drawing analogies from previously
decided cases' " in contravention to Lassiter. Lassiter, 28 F.3d
at 1150. The conclusion is set forth in the plain language of
Romeo and requires no analogies.
prisoner's Eighth Amendment rights when the official is
deliberately indifferent to the prisoner's serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251(1976).
Although Romeo establishes that the involuntarily civilly
committed have certain due process rights and that those rights are
at least as extensive as the rights of the criminally
institutionalized, that broad legal truism is insufficient to
clearly establish the law for purposes of overcoming the
appellants' qualified immunity claims in this case.23 In
determining whether the appellants in this case are entitled to
qualified immunity, we must look at case law which sets forth the
contours of the due process rights recognized in Romeo. Because,
under Romeo, the due process rights at stake were at least
equivalent to the comparable Eighth Amendment rights of the
criminally committed, relevant case law in the Eighth Amendment
context also serves to set forth the contours of the due process
rights of the civilly committed.
We will address the facts relevant to each individual
appellant in light of the relevant case law. We must determine
whether that law clearly established the conclusion that a
reasonable official at the time of the appellant's actions, knowing
what the appellant knew, would have realized that those acts
violated David's constitutional rights.
23
Moreover, in Romeo, the Supreme Court did not decide
whether the facts of that case would amount to a violation of the
plaintiff's due process rights. Rather the Supreme Court
remanded the case for the lower courts to decide.
IV. THE APPELLANTS
A. Karen Jurls
As David's primary therapist, Eufaula social worker Jurls had
the most frequent contact with David during his time at Eufaula.
She conducted a social history on him when he was admitted; she
knew he reported having threatened and or attempted suicide before
his arrival; she was on his treatment team; she was assigned to
counsel him weekly for one half hour and to act as co-therapist
24
during his weekly group therapy session; she knew of David's
self-injurious or suicidal behavior while at Eufaula; she
conducted the two written suicide assessments in the record; she
contacted Dr. Jenkins when it was recommended that David be
evaluated for anti-psychotic medication; and, she maintained David
on close observation status for much of his time at Eufaula because
of the various incidents in which David threatened to commit
suicide or exhibited suicidal gestures. Most significantly, for
our purposes, the plaintiffs have produced evidence from which a
fact finder could conclude that Jurls knew that David attempted to
hang himself on March 22 25 but that she nevertheless took him off
of close observation status without taking any other measures to
protect his safety or otherwise meet his mental health care needs.
As the district court indicated, our precedent in Greason, 891
24
The record indicates that David's therapy did not occur as
often as prescribed.
25
There is a factual dispute as to whether or not David
attempted to hang himself on March 22, and also with respect to
Jurls' knowledge thereof. In the summary judgment posture of
this case, we take the reasonable factual inferences in favor of
the plaintiffs.
F.2d 829 (11th Cir.1990), is relevant. In Greason, an inmate
committed suicide while in the Georgia Diagnostic and
Classification Center ("GDCC"), a Georgia Department of Corrections
facility where the decedent was being held. The decedent's family
brought a § 1983 action, alleging that the mental health
professionals and administrators at the facility were deliberately
indifferent to the decedent's mental health needs in violation of
the Eighth Amendment. Calvin Brown, the mental health team leader
in charge of the inmate's (Greason's) care and one of the
defendants in that case, was denied summary judgment on qualified
immunity grounds. Brown knew that while at the facility Greason
had been experiencing feelings of despair and thoughts of suicide
and on one occasion had attempted to kill himself by tying
something around his throat. This incident had been reported to
Brown well before Greason's final suicide, not only by two inmates,
but also by Greason's parents who on a visit to the facility asked
Brown for his help with respect to the problem. Id. at 832 & n. 8.
Nevertheless, Brown did not notify the staff psychiatrist or put
Greason on suicide watch. The court concluded such conduct
violated the decedent's Eighth Amendment rights:
The question here is a narrow one: whether Brown's failure to
monitor Greason after having been warned by Greason's parents
and two inmates that Greason had tried to commit suicide
constituted deliberate indifference.
Where prison personnel directly responsible for inmate
care have knowledge that an inmate has attempted, or even
threatened, suicide, their failure to take steps to prevent
that inmate from committing suicide can amount to deliberate
indifference.
Id. at 835-36 (footnotes omitted). The court affirmed the district
court's denial of Brown's motion for summary judgment on qualified
immunity grounds concluding "that a reasonable person in Brown's
position would have known that his provision of care constituted
deliberate indifference to Greason's eighth amendment rights...."
Id. at 836.
The situation in this case is comparable to that of Brown in
Greason. Jurls admits that she knew of David's history of mental
illness, i.e., his suicide threats and attempts or gestures and his
self-injurious behavior. If a jury found that she knew of his
self-injurious behavior over the weekend beginning March 21,
especially the attempted hanging on March 22, Jurls' decision to
take David off of close observation on March 24 presents a
situation comparable to Brown's behavior in Greason. Like Brown in
Greason, Jurls failed to notify any of the psychiatrists or
psychologists available to her and failed even to continue the
protective measures already in place for David. Rather than
protecting David or seeking professional guidance, Jurls' alleged
behavior actually put David at greater risk of suicide. Thus, her
decision is comparable to the decision which was held to constitute
deliberate indifference in Greason.
Because the constitutional violation on such facts was clearly
established in Greason, we conclude that plaintiffs-appellees have
adduced sufficient evidence to support findings of fact which would
constitute a violation by Jurls of clearly established
constitutional rights. Thus, we affirm the district court's denial
of summary judgment with respect to Jurls.
B. Andrew McBride
McBride, a staff psychologist at Eufaula, conducted one of
David's initial evaluations and was on David's treatment team. His
primary contact with David appears to have been as co-facilitator
of David's group therapy sessions. McBride knew about David's
history and many of the incidents which occurred while David was at
Eufaula. The plaintiffs contend that McBride should be liable
because he failed to take action after David's hanging attempt.
However, the plaintiffs do not argue that McBride knew about
David's March 22 hanging attempt.26 Rather, they argue that his
failure to apprise himself of that information and to take action
to prevent David from doing further injury to himself in light of
that information constituted a constitutional violation.
The fact that McBride did not know about the hanging attempt
sets his situation apart from Jurls'. McBride indicated that
during Monday morning community meetings, the residential staff
would report to clinical staff what of importance happened over the
weekend. The plaintiffs allege that McBride saw the seclusion
report. McBride, however, testified that he read the March 23
Progress Note but was only "informed" of a seclusion report. The
Progress Notes recorded on March 23 indicated that on both March 21
and March 22 David was secluded, in part, for attempting to do harm
to himself. This information is substantially the same as that
which would have been available had he read the March 21 and March
26
The district court's opinion is not clear, but it may have
thought that McBride knew of the March 22 hanging attempt. 847
F.Supp. at 933 ("McBride did not perform a suicide assessment on
David at that time, despite his awareness of Mr. Forte's report,
McBride depo. at 28-32...."). However, our careful review of the
deposition reveals no suggestion that McBride knew of the hanging
attempt; indeed, McBride expressly disavows such knowledge. Nor
is there other evidence that McBride knew.
22 seclusion reports. Thus, there is no evidence McBride was
apprised of the hanging attempt, but he was on notice that David's
self-injurious tendencies persisted through the weekend.
McBride's failure to inquire further and seek out the record
for closer inspection should be considered in light of the fact
that the clinical staff not on duty on weekends apparently
regularly relied on the residential staff to report important
incidents occurring on weekends and that neither the residential
staff nor the portion of the record McBride reviewed indicated that
David's threats to do harm to himself involved a hanging attempt.
Also, the appellees do not assert that McBride knew about or took
part in the decision to take David off close observation.27 Without
knowledge of the March 22 hanging attempt and with no apparent role
in the decision to take David off close observation, we cannot
conclude McBride's failure to take action after the weekend of
March 21-22 constituted a violation of clearly established
constitutional law under Greason28 or other relevant Eighth or
Fourteenth Amendment case law.
Although the plaintiffs presented as evidence an affidavit
27
The fact that he did take part in putting David on dorm
restriction does not indicate that he took part in the decision
to take David off of close observation status; there is no
indication in the evidence presented and plaintiffs do not allege
that dorm restriction meant that a resident was automatically
taken off close observation.
28
The actions of Calvin Brown, the mental health team leader
in Greason, can be distinguished from McBride's actions here.
Brown took no measures to protect Greason or to seek appropriate
help for Greason. The evidence in the record indicates that, as
far as McBride knew, measures were being taken to protect David
from himself, i.e., David was on close observation status and was
being monitored every fifteen minutes.
from an expert which stated that Andrew McBride "failed to meet the
basic professional standards in the evaluation, assessment, and
treatment" of David, the affidavit does not with any specificity
indicate how McBride's evaluation and treatment of David failed to
meet basic professional standards. A conclusory affidavit of this
nature provides little support for the appellees' claim.
The Dolohites also allege that McBride should be liable
because he failed to recommend that David be transferred to another
facility even though he considered David actively suicidal and knew
that Eufaula's policies did not authorize admitting actively
suicidal patients. See Eufaula Adolescent Center Policy No. 3.47,
Admission Criteria, # 2.E. However, no cases hold that a
government official's violation of facility or department policy,
without more, constitutes a constitutional violation. See, e.g.,
Edwards v. Gilbert, 867 F.2d 1271, 1276-77 (11th Cir.1989),
modified, reh'g denied, Edwards v. Okaloosa County, 23 F.3d 358(11th Cir.1994). Our case law does indicate that failing to
transfer or accommodate the serious health needs of a prisoner
could amount to a constitutional violation. In Howell v. Evans,
922 F.2d 712, 722-23 (11th Cir.1991), vacated as moot, 931 F.2d 711(11th Cir.1991), reinstated by unpublished order as noted, 12 F.3d
190 (11th Cir.1994), this court concluded that a superintendent of
a correctional facility was not entitled to qualified immunity
under the following facts. The superintendent knew that an inmate
had an urgent need for a particular type of medical personnel.
After the denial of the superintendent's recommendation that the
inmate be medically released, the superintendent failed to seek the
needed personnel on his own initiative. Instead, he relied on the
medical administrator to seek funding for the personnel through the
regular budgetary process.
The case at bar is different from Howell. In Howell, the
facility medical staff indicated to the superintendent that the
"prisoner could not be treated under the then current conditions"
of the facility. In the case before us, the record indicates that
the Eufaula staff could have treated David. Even the plaintiffs'
experts do not contend that Eufaula was not equipped to treat
David. Rather, the expert affidavits simply point to deficiencies
in the actions of Eufaula's professional personnel.29
We conclude that the facts adduced by appellees fail to show
that defendant McBride violated clearly-established constitutional
law.
C. Medical Money Management, Dr. Chester Jenkins, and Dr. Robert
Maughon
1. The Medical Money Management Contract
Drs. Jenkins and Maughon were psychiatrists who, as employees
of Medical Money Management, Inc., were under contract with Eufaula
to: provide psychiatric services on a consulting basis, admit
residents, write initial treatment plans, determine patients'
admitting diagnoses, prescribe medications, perform medication
reviews, examine residents before discharge, provide expert
testimony in court, and provide twenty-four hour call coverage. As
physicians under contract with the state, the psychiatrists were
29
For instance, Dr. Abraham Halpern, the plaintiffs'
psychiatric expert, concludes that David should have received
psychiatric medication and more intensive therapy. Both options
were apparently available at Eufaula.
state actors subject to liability under § 1983. See West v.
Atkins, 487 U.S. 42, 55-58, 108 S.Ct. 2250, 2259-60, 101 L.Ed.2d 40(1988); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703
(11th Cir.1985). Because they are individuals subject to liability
under § 1983, the psychiatrists are also entitled to raise
qualified immunity as a defense to liability.
The district court concluded that the psychiatrists, as
members of David's treatment team, had broad authority and
implicitly broad responsibility notwithstanding their allegedly
limited duties under the Medical Money Management contract.
Dolihite v. Videon, 847 F.Supp. at 930. However, only Dr. Jenkins
was on David's treatment team, and the fact that Dr. Jenkins was on
David's treatment team does not, in and of itself, indicate that he
had broader responsibilities than those set forth under the
contract. Significantly, appellees have not adduced evidence that
the psychiatrists had a duty to follow up on every patient at
Eufaula. The contract indicates that after a resident was
admitted, the psychiatrists were only obligated to follow up on
patients in order to perform medication reviews.30
The psychiatrists did have a duty to do intake evaluations,
initial diagnoses and initial treatment plans and to provide
psychiatric services when consulted. Thus it is incumbent upon us
to examine how each psychiatrist performed when called upon to
fulfill these duties.
2. Dr. Chester Jenkins
30
Although both Drs. Maughon and Jenkins prescribed
Vistaril, a tranquilizer, for David, the plaintiffs do not
contend that that prescription triggered the duty to follow-up.
a. Facts Relevant to Dr. Jenkins
Dr. Jenkins was the psychiatrist assigned to David's treatment
team. Although he did not conduct David's initial evaluation or
render the initial diagnosis, Dr. Jenkins signed David's treatment
plan in late January, 1992. The plan listed suicidal ideations and
gestures among David's primary problems and recorded Dr. Maughon's
diagnosis of "conduct disorder solitary aggressive type." David
next came to the notice of Dr. Jenkins on March 8, when a Eufaula
staff member notified him by phone that David had purposely cut his
arm, stated that he "want[ed] to commit suicide," and then
purposefully removed the stitches from the self-inflicted wound.
Over the phone Dr. Jenkins authorized the use of Vistaril, a
tranquilizer, and soft restraints, if necessary. Dr. Jenkins did
not follow up on the incident.
Then on March 18, after David stuck a pencil in the wound of
March 8, Eufaula staff again contacted Dr. Jenkins about David.
That day Dr. Nixon, the emergency room doctor who had also treated
David on March 8, indicated emphatically in David's medical records
that David needed a psychiatric examination.31 The next day, March
19, was the first day and the only time that Dr. Jenkins either saw
David or reviewed David's record. According to Dr. Jenkins, he
spent about one half hour with David. He conducted a "mental
status examination." Dr. Jenkins' notes of this examination, as
recorded in David's record, are cursory. Dr. Jenkins wrote that he
had reviewed David's case with David's nurse and therapist, that
31
She wrote: "MUST be evaluated by Psychiatrist for
antipsychotic medication...."
David had been engaging in self-destructive behavior, that there
was no current or past evidence of psychosis, that David was
"alert" and "oriented," that his thought was orderly, his affect
indifferent, and his memory and intellect intact. Dr. Jenkins
concluded, "This difficulty seems to be behavioral."
Although the scope of Dr. Jenkins' March 19 "mental status
examination" was not well-developed by the plaintiffs, it is
apparent from Dr. Jenkins' deposition that he formed the opinion
that there was no evidence of clinical depression, delusions, or
psychotic behavior. It was Dr. Jenkins' opinion that David was
exhibiting "non-suicidal self-destructive behavior," i.e., behavior
that was harmful but not life-threatening and behavior for which
there was some explanation. The explanation was that such behavior
was impulsive and related to things about which David was angry or
frustrated—i.e., David was using such behavior in a manipulative
fashion. Dr. Jenkins' ultimate opinion was that there was not a
need for psychotropic drugs and that David's problem was
behavioral.
b. Allegations Against Dr. Jenkins
The plaintiffs do not allege that Dr. Jenkins took part in the
decision to take David off close observation on March 24 or that
Dr. Jenkins had any contacts with David between the March 19
evaluation and David's March 24 suicide attempt. The plaintiffs do
allege that Dr. Jenkins failed to recognize David's obvious signs
of clinical depression and bipolar disorder and to diagnose him
accordingly. They contend that David's history of suicide threats
and his family history of suicide, his increasing episodes of
self-mutilation and mood swings should have led to that diagnosis.
They assert that Dr. Jenkins should have prescribed intense and
lengthy one-on-one therapy and antidepressant medication for David
and that the failure to do so was a total departure from
professional judgment.
The plaintiffs contend that Dr. Jenkins had the duty to make
such a diagnosis and recommend such treatment when he was consulted
on March 8 and then again when he was consulted on March 19. They
also assert that Dr. Jenkins failed to exercise professional
judgment when he did not see David on March 8. They argue that on
March 19, when he did see David, he failed to do an in-depth
evaluation or even an in-depth review of the record.32 They argue
that an in-depth review of the record would have revealed evidence
of David's serious mental illness illustrated by David's March 15
episode of bleeding and defecating on the walls of the time-out
room as well as other unspecified instances indicating serious
mental illness. The plaintiffs also cite Dr. Jenkins' cursory
notes on the examination as evidence that Dr. Jenkins did not do
any testing or in-depth evaluation. Finally, the plaintiffs
contend that Dr. Jenkins also failed to have the Ph.D.
psychologist, Dr. Mazick, see David for more in-depth testing.
c. Expert Testimony Against Dr. Jenkins
The plaintiffs presented expert medical testimony. Our
32
Apparently, both the plaintiffs and Dr. Halpern in his
expert affidavit are confused about which psychiatrist was
involved in the March 19 and March 21 incidents. The defendants
note that Dr. Jenkins, not Dr. Maughon, evaluated David on March
19 and Dr. Maughon, not Dr. Jenkins, prescribed the Vistaril
tranquilizer on March 21.
circuit has indicated that the testimony of medical experts can aid
the court in determining whether qualified immunity is appropriate
where allegations hinge upon the appropriateness of the actions of
medical professionals, including mental health professionals. See
Howell v. Evans, 922 F.2d 712, 722-23 (11th Cir.1991), vacated as
moot, 931 F.2d 711 (11th Cir.1991), reinstated by unpublished order
as noted, 12 F.3d 190 (11th Cir.1994); Greason v. Kemp, 891 F.2d
829 (11th Cir.1990); Waldrop v. Evans, 871 F.2d 1030 (11th
Cir.1989); Rogers v. Evans, 792 F.2d 1052 (11th Cir.1986). Such
expert medical testimony, making reference to specific deficiencies
in a defendant's treatment and specific medically accepted
standards might, in conjunction with the specific facts of a case,
persuade a court that the medical defendant's actions in the case
were clearly as great a departure from appropriate medical
standards as previous departures found unconstitutional in prior
cases—i.e., might persuade a court that a reasonable professional
in defendant's shoes would have known that his challenged actions
(or inaction) violated plaintiff's constitutional rights.33
The plaintiffs presented the affidavit of Dr. Abraham L.
Halpern, a certified and practicing psychiatrist. His affidavit
states that the psychiatrists' treatment of David was "a total
departure from professional judgment, practice or standards such
33
However, an expert opinion which is merely conclusory,
even if couched in the language of the relevant legal standard,
will be of little assistance to a court. See, e.g., Rogers v.
Evans, 792 F.2d 1052, 1062 n. 9 (11th Cir.1986) (approving lower
court's order striking affidavit of medical expert where the
affidavit was "phrased in conclusory terms without citing facts"
and concluding that the affidavit was "defective to create a
factual dispute.")
that it cannot be said that their treatment of David was based on
accepted professional judgment." However, Dr. Halpern's affidavit
suffers from several flaws.
First, Dr. Halpern was not careful to discuss Dr. Maughon and
Dr. Jenkins separately. Instead, Halpern often referred to "their
treatment" of David. And, when he did discuss them individually,
Dr. Halpern confused the two doctors' roles in their treatment of
David; his affidavit indicates that Dr. Maughon examined David on
March 19 and Dr. Jenkins prescribed Vistaril for David on March 21,
when in fact it was Dr. Jenkins who performed the examination on
March 19 and Dr. Maughon who received the call on March 21. Also,
Dr. Halpern assumes that the psychiatrists under contract with
Eufaula had a duty to manage and follow up on each patient. As
discussed, supra, Medical Money Management's contract did not call
for that34 nor does any other part of the record indicate that the
consulting arrangement or accepted medical standards required
monitoring and follow-up on any patients aside from those patients
receiving medication.35 The terms of the agreement indicated that
the psychiatrists could depend on the staff mental health
professionals to bring to their attention problems indicating a
need for psychiatric intervention. Finally, Dr. Halpern's
34
Rather, the contract required Drs. Maughon and Jenkins to
conduct the initial evaluation, to prescribe medication, to
follow up on patients receiving medication, to be available for
consultation, and to consult on an as-needed basis.
35
There is another error in Dr. Halpern's affidavit—as part
of his consideration of the March 19 events, Dr. Halpern assumes
that the psychiatrist should have called the emergency room
doctor. There is no substantiation for this claim in his
affidavit or in relevant case law.
affidavit was not helpful in establishing the degree to which Dr.
Jenkins had allegedly departed from accepted medical standards.
Dr. Halpern's affidavit does refer to three incidents which he
suggests indicated a need for more intensive intervention—the
February 18 incident in which David was found talking to himself,
the March 8 incident when David cut himself and removed the
sutures, and the March 15 incident when David was bleeding on the
walls and defecating on the floor of the time-out room. Dr.
Halpern expressly labels only one of these incidents as psychotic
behavior. He does not state why these incidents are so serious as
to require medication or more intensive therapy nor does he cite
authority for his conclusory suggestion that any doctor would
recognize these incidents as calling for more intrusive
intervention. In the last analysis, Dr. Halpern's affidavit is
conclusory and as such is of relatively little value in our
interpretation of the facts of this case. Thus, we are essentially
left with little help from the expert in comparing the facts of
this case with binding precedent which sets forth the contours of
our law in this area.
This is not to say that Dr. Halpern's conclusions are wrong.
Rather it is to say that his affidavit does not aid us in our
qualified immunity analysis. His affidavit is not the kind of tool
which indicates with any specificity the degree to which the doctor
here strayed from the realm of accepted professional judgment. The
fact that Dr. Halpern used the phrase "total departure from
professional judgment, practice or standards, such that it cannot
be said that their treatment of David was based on accepted
professional judgment of psychiatric practice" does not foreclose
summary judgment when qualified immunity has been properly raised.
The affidavit must help the court to discern whether the purported
departure was so egregious that, in light of the reported cases, a
reasonable professional would have recognized that his behavior
amounted to a constitutional violation.
d. Application of Prior Case Law
Our analysis here will focus first on the plaintiffs'
assertion that Dr. Jenkins failed to adequately assess and treat
David after the March 18 incident when David stuck a pencil in his
March 8 self-inflicted wound. Dr. Jenkins evaluated David on March
19, the day following Dr. Nixon's note in David's record indicating
the need for a psychiatric evaluation for anti-psychotic
medication.
Relevant to our inquiry into Dr. Jenkins' behavior on March 19
is the fact that Dr. Jenkins indicates that he reviewed David's
record prior to examining him. Thus, taking the facts in the light
most favorable to the plaintiff, Dr. Jenkins would have known of:
1. David's previous suicidal threats and gestures;
2. David's grandmother's suicide;
3. Dr. Maughon's initial diagnosis of David, "conduct
disorder, solitary aggressive type;"
4. David's January 26, 1992, deep possibly self-inflicted
puncture wound to his left wrist and his statement that he was
going to "cut his arm off and kill himself;"
5. The February 2, 1992, incident when David wrote, "Oh, God
I want to die, please take me or I'll commit suicide, Death,
Suicide are the facts of life." on the security screen in his
dormitory room;
6. The February 4, 1992, self-inflicted injury to the left
wrist and the Progress Note of the same day indicating that David
had been presenting as irrational;
7. The February 18, 1992, incident when David was talking to
himself and telling a staff nurse that he was talking "to a friend
who told him what to do;"
8. The February 24, 1992, incident when David performed some
allegedly Satanic ritual in his room, inflicted further injury to
left wrist, after which he told a mental health worker that the
devil told him not to speak;
9. The March 8, 1992, incident when David cut his arm with a
piece of metal in an apparently suicidal gesture, and after which
he pulled out the stitches and refused new stitches;
10. The March 15, 1992, incident when David bled on the walls
and defecated on the floor of the time out room; and
11. The March 18, 1992, incident when David re-injured his
left wrist by sticking pencil in it and was again sent to the
emergency room.
In addition to these facts, Dr. Jenkins would have known that
Dr. Maughon had not identified a psychosis, that David's suicidal
threats and gesture problem were supposedly being addressed during
his weekly therapy sessions, and that David's family could not
confirm that he had attempted suicide before coming to Eufaula.
The record also indicates that Jurls questioned whether David
experienced genuine suicidal intent,36 and that whenever he was
explicitly asked about it David consistently denied having suicidal
intent, a specific suicidal plan, or being depressed.
Having set forth the extent of Dr. Jenkins' knowledge of
David at the time of the challenged treatment, we now turn to this
circuit's prior cases to determine whether or not the departure in
this case is as egregious as those cases, or more so. It is clear
that Dr. Jenkins' departure in this case is not as egregious a
departure as that of the psychiatrist in Greason v. Kemp, 891 F.2d
829 (11th Cir.1990). In that case, the psychiatrist—without
conducting a mental status exam and without reading an inmate's
record—discontinued the inmate's antidepressant medication. Before
entering prison, the inmate in Greason had been diagnosed as
schizophrenic with suicidal tendencies and had been treated at a
county mental health center with anti-depressant medication because
he had contemplated suicide. Both the inmate's former therapist at
the county facility as well as a psychiatrist from the Georgia
Department of Human Resources sent letters or reports recommending
that the inmate be maintained on his anti-depressant medication.
Both of these letters were in the inmate's file. The psychiatrist
in Greason discontinued the medication without instructing that the
inmate be monitored for the adverse effects of discontinuing the
medication.
36
For instance, at one point she considered his threats to
be for "shock value" and at another she questioned "the actual
pervasiveness of his thoughts and whether or not they appear to
be more manipulative in nature." In the first suicide
assessment, Jurls noted that David's family did not have
knowledge of David's past suicide attempts and that David's
self-reported past gestures could not be confirmed.
Similarly, the instant facts are not as egregious as those
37
presented in Rogers v. Evans, 792 F.2d 1052 (11th Cir.1986).
There the court concluded that deliberate indifference to medical
needs might be established under the circumstances—i.e., a
reasonable jury could find that in response to the justified
criticism of past inappropriate medical care, the psychiatrist had
simply withdrawn medical care altogether. Id. at 1061. The court
also considered the fact that the defendant-psychiatrist had
treated the inmate's psychotic symptoms with placebos and the fact
that the doctor had used Prolixin, a treatment which was arguably
grossly incompetent.
A third case, Waldrop v. Evans, 871 F.2d 1030 (11th Cir.1989),
preceded Greason and involved the same facility and the same
psychiatrist. In that case an inmate pled guilty but mentally ill
to armed robbery. Id. at 1032. When the inmate arrived at the
Georgia Diagnostic and Classification Center, a Georgia Department
of Corrections facility, in October of 1984, he had been diagnosed
as manic depressive and was taking lithium. Id. On October 18,
1984, he was evaluated by the defendant psychiatrist who concluded
that his psychiatric problems were in remission and withdrew the
drugs. Id. at 1034. A staff physician recommended another
interview because Waldrop was suffering from insomnia, nightmares,
and nausea. The psychiatrist saw him again on October 27, 1984,
but did not place him on medication. On November 1, 1984, Waldrop
slashed his forearm, although the psychiatrist was not notified at
37
This case did not address the qualified immunity issue.
Nevertheless, it sets forth binding precedent and as such serves
to elucidate the contours of the law in this area.
the time. Id. at 1032, 1034. On November 4, 1984, Waldrop gouged
his left eye out and was taken to the hospital. Id. at 1032. Upon
his return from the hospital on November 8, 1984, the psychiatrist
examined Waldrop and placed him on two drugs but not on lithium,
the antidepressant drug he had previously been prescribed. Id. at
1034. The psychiatrist also ordered no emergency measures to
protect Waldrop. Id. at 1034. Later, at another facility, the
inmate cut his scrotum, losing both testicles, and so severely
damaged his right eye that he lost his sight in it. Id. at 1032.
Pursuant to expert medical opinion in evidence, the court held that
a jury could reasonably find facts which would rise to the level of
a violation of clearly established law.
It is fair to say that the self-injurious actions preceding
David's final injury in this case are not comparable to those in
Waldrop; Waldrop's gouging out his left eye clearly is a more
serious incident than the most serious incident in this case prior
to the March 24 hanging attempt, namely, the March 8 self-inflicted
wound. Waldrop is also different from this case in that Waldrop
had pled not guilty but mentally ill, had been diagnosed as manic
depressive, and placed on lithium, an antidepressant drug, all
before coming under the defendant's care. We are satisfied that
the defendant-psychiatrist's inadequate response to the symptoms in
Waldrop are not comparable to Dr. Jenkins' actions in this case.
In summary, we conclude that the facts adduced by plaintiffs
fail to show that Dr. Jenkins' actions38 were such a departure from
38
If Dr. Jenkins' actions on March 19, at which point he was
privy to several more incidents of David's self-destructive and
possibly psychotic behavior, did not violate clearly established
professional judgment that a reasonable professional in his shoes
would have known that his actions violated David's constitutional
rights. Plaintiffs' medical expert's testimony fails to establish
the degree of alleged departure. Plaintiffs have not adduced facts
to demonstrate that Dr. Jenkins' alleged departure from
professional judgment was comparable to that previously found to
constitute a violation of constitutional rights.
3. Dr. Maughon
We next address plaintiff's contentions with respect to Dr.
Maughon, the other psychiatrist under contract with Eufaula. Dr.
Maughon's involvement with David was limited to his initial
evaluation of him on January 23, 1992, and his March 21
prescription of Vistaril over the telephone. Evaluating Dr.
Maughon's actions in light of the facts then known to him, it is
clear that he had less information than Dr. Jenkins, and that his
actions are less suspect than those of Dr. Jenkins.
With respect to the initial evaluation, plaintiffs' expert,
Dr. Halpern, notes that David had a family history of suicide, had
made prior suicidal threats and attempts, and suggests that these
were "obvious signs of clinical depression and bipolar disorder."
Based on the foregoing, Dr. Halpern concludes that Dr. Maughon
"made no attempt to properly evaluate and treat David for these
obvious mental disorders." This cursory conclusion does not aid
the appellees here. First, Dr. Halpern's conclusion that David
should have been evaluated as clinically depressed with bipolar
constitutional rights, it follows that his alleged failure to
take action on March 8 did not violate clearly established
constitutional law.
disorder upon being admitted to Eufaula is supported only by the
fact that David had made prior suicide attempts and threats and
that a family member had committed suicide. Dr. Halpern's
affidavit does not set forth any support for his conclusory
statement that these factors would have led to the diagnosis he
contends is the correct one. Although Dr. Halpern states that Dr.
Maughon made "no attempt to properly evaluate and treat David," he
does not describe what sort of evaluation should have been
conducted. Nor does Dr. Halpern indicate whether or how the
prescribed treatment should have been different upon David's
admittance had he been correctly diagnosed. Second, there are no
indications that Dr. Halpern took into account when David's threats
were made.39 Nor did Dr. Halpern note whether such reports of
attempts and threats might have been, absent evidence of injury or
near injury, manipulative or attention-getting behavior on David's
part as both Jurls' and Dr. Jenkins' notes in David's record seem
to imply. 40 Finally, Dr. Halpern's affidavit makes no effort to
evaluate the degree to which Dr. Maughon had allegedly departed
from accepted medical standards.
39
The social history conducted by Jurls simply stated that
David had had suicidal thoughts and gestures within the two years
before being admitted to Eufaula. His Baldwin County report
conducted in August of 1991 did indicate that at least one threat
occurred in March 1991.
40
For example, Jurls wrote on March 2 that David continued
to enjoy the "shock value" of talking about suicide. The record
seems to indicate that Jurls questioned whether David had ever
actually attempted suicide. She noted in the January 27, 1992,
suicide assessment form that David's family had no knowledge of
David's past attempts and that David's self-reported gestures
could not be confirmed. In the same report she described his
suicidal thoughts as without genuine intent.
Dr. Maughon's alleged misdiagnosis is less egregious than
that of the psychiatrist in Greason and Waldrop. That psychiatrist
knew that mental health professionals outside the prison system had
previously diagnosed the inmates as suffering from serious
psychiatric conditions and that those outside professionals had
recommended that the inmates remain on previously prescribed
psychiatric medications. Here the only previous diagnosis
available to Dr. Maughon was the psychological evaluation from
Baldwin County Mental Health Center, and it did not set forth any
diagnosis but recommended only that David return to outpatient
counseling and be placed in a residential program if his condition
deteriorated. The evidence indicates that as of January 1992, when
the initial intake was done, no other doctor or psychologist had
suggested that David be evaluated for anti-psychotic medication.41
Nor does Dr. Maughon's behavior appear to be more egregious than
that of the physician in Rogers v. Evans, 792 F.2d 1052 (11th
Cir.1986), where the doctor was potentially liable for having
withdrawn medical care in response to the justified criticisms of
the inmate's family and where her use of two different medications
were called into question.
After the initial assessment completed on January 23, Dr.
Maughon was contacted only once more, on Saturday, March 21. At
that time, David had been placed in seclusion after destroying
property and threatening to cut himself with a piece of glass. He
was beating his head on the wall and cursing loudly. Dr. Maughon
41
Dr. Nixon, not a psychiatrist, referred David for
evaluation almost two months after Dr. Maughon's initial
evaluation of David.
was notified by telephone, and prescribed a tranquilizer over the
telephone. In evaluating Dr. Maughon's actions under the
circumstances the following factors are relevant. There is no
evidence that Dr. Maughon reviewed David's record when he was
called on the telephone on Saturday, March 21. Thus, we cannot
assume that he had the more extensive knowledge which Dr. Jenkins
had. Moreover, the incident on March 21 about which Dr. Maughon
was consulted was clearly not as serious as the one about which Dr.
Jenkins was consulted.42 Finally, Dr. Maughon, like Dr. Jenkins,
could rely on the Eufaula staff to monitor David's progress.
We readily conclude that plaintiffs have failed to show that
Dr. Maughon's actions were such a departure from professional
judgment that a reasonable professional in his shoes would have
known that his actions violated David's constitutional rights.
Indeed, the case against Dr. Maughon's is a fortiori less
compelling than the case against Dr. Jenkins because Dr. Maughon is
charged with less knowledge and because the particular incident
which triggered his consultation was less serious than that which
triggered Dr. Jenkins' evaluation.
D. Bradley Mazick, Ph.D.
Dr. Mazick, a psychologist, was clinical director of Eufaula
during David's time there. The appellees allege that Dr. Mazick
failed to exercise professional judgment both as a psychologist
involved with David's care and as clinical director of the facility
42
The notes about this incident in David's record indicate
only that "Dr. Maughon was notified about this resident beating
and banging head on walls and cursing and totally out of
control—He said give Vistaril 50 mg in stat...."
by failing to review David's record, failing to supervise Jurls,
failing to reform Eufaula's seclusion and time out policies, and
failing to take measures to prevent the alleged abuse at Eufaula.
We will first address whether Dr. Mazick's personal treatment of
David violated David's constitutional rights and then address
whether Dr. Mazick's alleged failure to discharge his
administrative/supervisory duties amounted to constitutional
violations.
1. Dr. Mazick's Treatment of David
The appellees generally contended that Dr. Mazick departed
from the most basic professional judgment in his treatment of
David. They apparently base this allegation on his alleged failure
as a general matter to supervise and to ensure for David the
necessary and essential psychiatric treatment, and his failure to
see David until two months after David was assessed and recognized
as having made suicidal threats and gestures.
Dr. Mazick had only two personal contacts with David. The
first was shortly after David injured his left wrist. Dr. Mazick
secluded him sometime after that incident and asked him about his
arm at that point. Then Dr. Mazick saw David briefly on March 24
when he had an informal conversation with him. 43 Plaintiffs have
failed to adduce evidence that Dr. Mazick knew that David had
attempted to hang himself on March 22. The record indicates that
he had not seen the March 22 entry nor did he know that David had
43
In his deposition, Dr. Mazick testified that he saw David
in the hallway and that David requested to speak with him.
attempted to injure himself on March 21.44 The plaintiffs presented
no further evidence from which a fact finder could infer that Dr.
Mazick knew of the March 22 hanging attempt. Although the expert
affidavit asserts that Dr. Mazick's behavior was not based on
professional judgment because he failed to review the record, it is
not clear that Dr. Mazick's failure to review the record in this
situation rises to the level of unconstitutionality. First, the
record does not indicate that Dr. Mazick was involved in the
decision to take David off close observation.45 Second, plaintiffs
have not adduced evidence to suggest that Dr. Mazick could not
delegate the responsibility to Jurls and McBride to review
residents' records and to bring relevant information to his
attention. Finally, the affidavit of plaintiffs' expert, upon
which plaintiffs apparently rely to show deficient professional
supervision, is wholly conclusory and is of little assistance.
We readily conclude that plaintiffs have failed to show that
a reasonable professional in Dr. Mazick's shoes would have known
that his actions violated David's constitutional rights.
2. Dr. Mazick's supervisory duties
The plaintiffs allege that Dr. Mazick's failure to discharge
44
Mazick noted that David was due to be off close
observation status because he had been free of self-injurious
behavior for several days. However, had he looked at David's
record, he would have realized that there were two self-injurious
incidents over the weekend. Apparently, he was inferring that
such was the case from David's comments and from Jurls' decision
to take David off close observation.
45
He did indicate after the fact that he told David that he
saw no reason David should not be taken off close observation,
but the record does not show nor do the plaintiffs contend that
he took part in that decision.
his supervisory duties violated clearly established constitutional
law and bore a causal relationship to David's injury. It is true
that in some situations, supervisors may be held liable for failing
adequately to train and supervise their subordinates.
[Supervisory] liability under section 1983 "must be based on
something more than a theory of respondeat superior.
Supervisory liability occurs either when the supervisor
personally participates in the alleged constitutional
violation or when there is a causal connection between actions
of the supervising official and the alleged constitutional
deprivation. The causal connection can be established when a
history of widespread abuse puts the responsible supervisor on
notice of the need to correct the alleged deprivation, and he
fails to do so."
Cross v. Alabama Dep't. of Mental Health & Mental Retardation, 49
F.3d 1490, 1508 (11th Cir.1995) (quoting Brown v. Crawford, 906
F.2d 667, 671 (11th Cir.1990)); accord Dean v. Barber, 951 F.2d
1210, 1215 (11th Cir.1992) ("[A] supervisor may be held liable
under section 1983 if the supervisor had personal involvement in
the constitutional deprivation or if a sufficient causal connection
exists between the supervisor's conduct and the constitutional
violation."). A supervisor sued in individual capacity is entitled
to qualified immunity unless a reasonable supervisor would have
known that his or her actions were unlawful in light of
clearly-established law and the information possessed. Greason,
891 F.2d at 836-37.
The plaintiffs allege that Dr. Mazick failed to fulfill his
supervisory responsibilities, including his duty to supervise
Jurls, his duty to review David's clinical course on a regular
basis given the fact that he "had knowledge of David's suicidal
condition" and to monitor the amount of treatment David was
getting. The expert affidavit of Dr. Hamilton asserts that Dr.
Mazick "should have" reviewed David's clinical course on a regular
basis and monitored Jurls. However, the expert's affidavit
provides no support for his conclusory opinion. Neither the
expert's affidavit nor any other evidence adduced by plaintiffs
supports their assumption that it was improper for Dr. Mazick to
rely on Jurls to bring relevant matters to his attention.
Significantly, Dr. Hamilton does not address the issue of the
degree to which Dr. Mazick's actions allegedly departed from
accepted professional standards, and thus does not help plaintiffs
discharge their heavy burden in that regard. Dr. Hamilton did
suggest that in Alabama only psychiatrists and psychologists could
diagnose mental illness. However, neither plaintiffs nor their
expert indicate why, after a psychiatrist's diagnosis was made, Dr.
Mazick could not rely upon Jurls to bring relevant matters to his
attention.
None of our case law indicates that a supervisor's failure to
monitor an individual patient's progress amounts to deliberate
indifference or failure to exercise professional judgment. Thus,
even if Dr. Mazick's actions departed in some degree from accepted
standards, plaintiffs have failed to carry their burden of
establishing such an egregious departure that a reasonable
professional in Dr. Mazick's shoes would have known that he
violated David's constitutional rights. Dr. Mazick's actions are
not as egregious as the actions of Drs. Oliver and Duncan, the
medical administrators who were denied qualified immunity in
Greason. Both doctors were aware of the severe inadequacies of the
institution, including the clearly inadequate number of
professional staff. Both knew that the particular psychiatrist
assigned to the inmate had an excessive burden. Both were aware
that the psychiatrist had discontinued Greason's medication. Both
were aware of the previous incident, i.e., the Waldrop incident, in
which an inmate had plucked out one of his eyes, severely injured
the other eye, and cut his scrotum losing both testicles after the
same psychiatrist first discontinued that inmate's psychiatric
medication and failed to reinstate one of the medications. See
Waldrop, 871 F.2d at 1032. Thus, Greason does not indicate that
Dr. Mazick's conduct violated the Constitution.
Nor are Dr. Mazick's alleged supervisory failures comparable
to those in George v. McIntosh-Wilson, 582 So.2d 1058 (Ala.1991).
In that case a severely mentally retarded patient died when he was
left unattended and choked on a rubber glove left within his reach.
In that case the court concluded that a fact finder could infer
that the administrator failed in her duty to disseminate
information to the non-professional direct-care employee regarding
the patient's dangerous mouthing habit.
The appellees also assert that Dr. Mazick was responsible for
the constitutional violations inherent in Eufaula's seclusion
practices, specifically the "inhuman conditions in building 112" as
well as the manner in which time out and other forms of
restrictions were used. The appellees allege that these practices
violated the law set forth in Romeo. Plaintiffs' claim fails both
factually and legally.
With respect to Building 112, appellees cite no evidence that
specifically sets forth that the conditions were inhumane.
Although the appellees allege that seclusion in Building 112 had no
therapeutic effect, none of the documents they cite support that
conclusion. Rather the documents cited by the appellees merely
indicate that reforms were necessary with respect to Eufaula's
seclusion and restraint system. Nor have plaintiffs presented
expert testimony indicating that the restraints used in Building
112 constituted a failure to exercise professional judgment.
Plaintiffs' argument with respect to time-out and other forms of
restrictions fails for the same reasons.
Plaintiffs' claim also fails legally. A conclusory allegation
that the use of Building 112's seclusion facility violated Romeo is
insufficient, absent precedent that more clearly sets forth what
form of restraint is violative of Romeo. Although Romeo stated
that the mentally retarded patient in a state institution did have
a liberty interest in freedom from bodily restraint, id., 457 U.S.
at 316, 102 S.Ct. at 2458, the Court went on to note that that
liberty interest was not absolute. Id. 457 U.S. at 319, 102 S.Ct.
at 2460. Rather the " "liberty interest of the individual' " had
to be balanced with " "the demands of organized society.' " Id.
457 U.S. at 319, 102 S.Ct. at 2460. Citing Bell v. Wolfish, 441
U.S. 520, 540, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979), the
Romeo court indicated that while pre-trial detainees, for instance,
could not be punished, restraint of pre-trial detainees "reasonably
related to legitimate government objectives and not tantamount to
punishment" was upheld. Romeo, 457 U.S. at 319, 102 S.Ct. at 2460.
The Court further indicated that balancing would be left to the
professional judgment of the qualified staff members and that
courts need only make certain that professional judgment was
exercised. Finally, the Court in Romeo never indicated that the
restraints used in that case were violative of the patient's due
process rights.46 The appellees have not cited other cases which
would indicate that the sort of restraint used here would violate
David's right to be free from bodily restraint. Plaintiffs have
relied on merely abstract propositions, which the court in Lassiter
v. Alabama A & M University, Board of Trustees, 28 F.3d 1146, 1150
(11th Cir.1994) (en banc), held was clearly insufficient.
Appellees also allege Dr. Mazick was responsible for not
taking remedial actions to halt the beatings and abuse at Eufaula.
Eleventh Circuit cases have held that administrators' failure to
abate violence and abuse may constitute deliberate indifference.
See, e.g., Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir.1995)
(where inmate on inmate violence was regular during overcrowding
and where it was severe enough to require medical attention and
even hospitalization on occasion); LaMarca v. Turner, 995 F.2d
1526, 1535 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.
1189, 127 L.Ed.2d 539 (1994) (where in a prison context unnecessary
pain and suffering standard met by "unjustified constant and
unreasonable exposure to violence"). However, the evidence
presented by the plaintiffs does not indicate that Dr. Mazick was
apprised of an extent of violence and abuse which would have put
him on notice that his failure to act in the face of such abuse and
violence would rise to the level of a constitutional violation.
46
In Romeo, the patient was physically restrained during
portions of each day through the use of soft restraints which
apparently bound the arms only.
With respect to the allegations that abuse was rampant at
Eufaula, the appellees have presented as evidence the affidavits of
John Fowler and Billy Kirby as well as the testimony of Allen
Forte. The affidavit of Kirby did allege that Dr. Mazick knew
about the beatings. Specifically, Kirby stated that he complained
to Dr. Mazick that "all of [the residents] were being hit by staff
members including ... David ... and lots of others." However, we
do not believe that this limited information would support a
finding that violence and abuse were so rampant that failure to
react would constitute a clearly-established constitutional
violation. Plaintiffs also presented as evidence of abuse and
violence the FY 1991-92 Advocacy Monitoring Report. That report,
for the reasons discussed supra at Part I, did not provide
sufficient evidence to indicate that physical abuse was such that
a jury could infer that Dr. Mazick knew that the abuse and violence
were rampant. The report only concluded that incident
investigations were inadequate; it only detailed a few allegations
and none had been substantiated.47 Thus, we do not believe that the
case law clearly established that a reasonable professional
possessing the knowledge that Dr. Mazick had would have known that
his actions violated David's constitutional rights.
E. Anthony Dykes
47
A jury might infer that Dr. Mazick had learned of the
plight of the resident discussed in Allen Forte's affidavit.
Allen Forte testified that one resident had to be taken to the
hospital twice to be treated for injuries incurred when other
residents sexually abused him. However, even assuming Dr. Mazick
knew of these two incidents also, the totality of what he knew
does not create an inference that the episodes of abuse at
Eufaula rose to the level discussed in the text.
Anthony Dykes was the director of the Eufaula Adolescent
Center. Dykes was not trained in psychology, psychiatry, or social
work, thus Dykes was not a mental health professional.
Nevertheless, as an administrator or supervisor, he would be liable
if he participated in the constitutional violation or if a causal
connection existed between his actions and the constitutional
deprivation. Cross v. Alabama Dep't. of Mental Health & Mental
Retardation, 49 F.3d 1490 (11th Cir.1995).
First, appellees contend that Dykes failed to make sure David
was free from unnecessary bodily restraints, i.e., that he allowed
the practice of restraining patients for punitive rather than
therapeutic purposes, and that he allowed the use of building 112
for seclusion. For the reasons discussed above with respect to Dr.
Mazick, this allegation must fail.
Second, the appellees allege that Dykes failed to make sure
that David did not experience abuse at Eufaula. Although, Kirby's
affidavit asserts that he told Dykes of the beatings children
received at the hands of staff or other residents, this allegation
must fail for the reasons set forth supra in our discussion of this
allegation with respect to Dr. Mazick.
Third, the appellees contend that Dykes violated David's
constitutional rights by failing to make sure conditions at Eufaula
were safe, among other things, by failing to remove the bars from
the dormitory closets. We first note that Dykes could reasonably
rely on subordinates to ensure that a child who was at risk of
doing harm to himself would be placed on close or continuous
observation or that other precautionary measures might be taken.
More importantly, we find no case law indicating that Dykes
violated clearly established constitutional rights.48 This case is
distinguishable from Greason; there the non-professional
administrator was held liable because he took no corrective action,
notwithstanding having been specifically put on notice of
49
particular defects or inadequacies in his facility. Unlike the
situation in Greason, no evidence of earlier incidents of injury
involving the alleged inadequacy, i.e., the bars in the dormitory
closets, was presented.
Fourth, the appellees also contend that Dykes failed to make
certain that David had adequate medical care, specifically adequate
psychiatric care, or adequate individual treatment as would give
him the realistic opportunity to be cured or to improve his medical
condition. However, there is no indication that Dykes knew the
details of David's history of suicidal threats or gestures or that
Dykes knew about the specific behaviors David exhibited while at
Eufaula. Moreover, appellees' complaints about Dykes in this
regard rely on abstractions, which we readily conclude are
insufficient. See Lassiter, 28 F.3d at 1150.
48
In Belcher v. City of Foley, 30 F.3d 1390 (11th Cir.1994),
this circuit held that it was not clearly established that "a
reasonable jail official, who knew that an inmate could hang
himself by tying some material to the bars of a jail-cell door
and yet who failed to prevent that possibility, was acting with
deliberate indifference to an inmate's taking of his life." Id.
at 1399.
49
In that case, Kemp, the warden of the facility where an
inmate committed suicide, knew of particular inadequacies in his
facility but did nothing to correct them and knew a similar
incident had occurred previously but did nothing to investigate
that previous incident or prevent it from happening again.
Greason, 891 F.2d at 839-40.
Fifth, the appellees argue that Dykes took no steps to insure
that Joint Commission on Accreditation of Health Organizations
("JCAHO"), accreditation was attained as required under the Wyatt
Consent Decree as amended and approved in Wyatt v. Wallis, 1986 WL
69194, *6 (M.D.Ala.1986). We need not address whether a consent
decree can in other circumstances clearly establish the
constitutional law,50 because we hold in this case that neither the
Consent Decree nor any other precedent clearly established a
constitutional right to JCAHO accreditation. As one of many
remedial measures, the Wyatt Consent Decree required the state
officials "to make all reasonable efforts to achieve full
accreditation of Alabama's mental health facilities by the Joint
Commission on the Accreditation of Hospitals...." Id. at *6. That
mandate, however, does not mean that lack of accreditation is a per
se constitutional violation. Such a proposition would be
anomalous, and surely is not clearly-established constitutional
law.
Finally, the appellees contend that Dykes and his
subordinates exhibited such a degree of indifference to the
policies and procedures that the staff could not have based their
decisions on professional judgments embodied in the policies. See
George v. McIntosh-Wilson, 582 So.2d 1058, 1063 (Ala.1991)
("[P]olicy-making administrators would be liable for the
50
See Clark v. Evans, 840 F.2d 876, 880 n. 4 (11th
Cir.1988); Williams v. Bennett, 689 F.2d 1370 (11th Cir.1982),
cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983);
Jackson v. Mississippi, 644 F.2d 1142 (5th Cir. Unit A May 1981).
See also Long v. Norris, 929 F.2d 1111 (6th Cir.), cert. denied
sub nom. Jones v. Long, 502 U.S. 863, 112 S.Ct. 187, 116 L.Ed.2d
148 (1991); Green v. McKaskle, 788 F.2d 1116 (5th Cir.1986).
constitutional deprivations caused by their subordinates if they
exhibited such a degree of indifference to compliance with their
policies as to demonstrate that they did not base their actual
administrative decisions or actions on the professional judgments
embodied in the policy.") However, neither the appellees' expert
affidavit nor other evidence in the record indicates which policies
were violated as a result of Dykes' failures. 51 Nor do appellees
identify the clearly established constitutional rights implicated
by such policies. We readily conclude that appellees have failed
to establish that these alleged deficiencies on the part of Dykes
violated David's clearly established constitutional rights.
Lassiter, 28 F.3d at 1150.
F. Emmett Poundstone
Emmett Poundstone was ADMHMR Associate Commissioner for
Mental Health. The Eufaula facility was within the scope of
Poundstone's responsibility. Poundstone was not a mental health
professional. The plaintiffs claim that Poundstone failed to make
sure that the Eufaula staff were trained in suicide assessment and
in recognizing suicidal tendencies. We readily conclude that this
claim has no merit. Where an institution is staffed with health
care professionals, including licensed psychologists, psychiatrists
and social workers, we know of no cases which indicate that in this
circuit the failure of a state-wide administrator to make
provisions for such training for the mental health care
51
Although it is alleged that Eufaula's policy was violated
when David was admitted in contravention of the policy against
admitting actively suicidal patients, it is not alleged that
Dykes took part in that decision or that he could be directly
implicated in that decision.
professionals constitutes a violation of clearly established
constitutional rights.52
As noted in the margin, the remaining claims by plaintiffs
against Poundstone fail for reasons already discussed.53
G. Royce King
Royce King was ADMHMR commissioner. He is not a mental
health professional. The appellees allege that King and his
subordinates exercised such a degree of indifference to compliance
52
In Greason, numerous failings combined to persuade the
court to deny qualified immunity to Dr. Duncan, who held the
state-wide position of Director of Mental Health for the Georgia
Department of Corrections. Dr. Duncan was aware of the previous
and very similar Waldrop incident, was aware that the same
psychiatrist primarily responsible for the Waldrop incident was
the only source of psychiatric care for Greason, was aware that
he could not adequately treat all of the inmates requiring mental
health care, was aware that the particular institution made no
provision at all for mental health treatment plans, and in
general was aware of the conditions at the institution that
constituted grossly inadequate mental health care. Nevertheless,
Dr. Duncan failed to take any remedial action. Amongst the
claims of Dr. Duncan's deficiencies was a claim superficially
similar to, but actually much different from the instant
claim—i.e., that Dr. Duncan knew that the institution had no
policies or procedures designed to help the nonprofessional
prison staff and guards recognize suicidal tendencies and prevent
suicide attempts. Not only was that alleged deficiency merely
one of a number of more serious deficiencies, the instant claim
against Poundstone is not that he knew that Eufaula's provisions
for suicide assessment were wholly inadequate, but rather that he
merely failed to ensure that there were policies requiring more
training. We readily conclude that the Greason precedent is
wholly inapposite.
53
The plaintiffs contend that Poundstone is not entitled to
summary judgment because (1) he failed to take measures to stop
the beating and abuse at Eufaula, (2) he failed to change the
allegedly unconstitutional seclusion and time-out policies, and
(3) he failed to ensure that Eufaula acquired JCAHO
accreditation. The first and second allegations fail for the
reasons set forth in Section IV.D., in our discussion of this
claim with respect to Bradley Mazick. The third claim fails for
the reasons set forth in Section IV.E., in our discussion of this
claim with respect to Anthony Dykes.
with the ADMHMR policies that they did not base their actual
administrative decisions on professional judgment. However, the
appellees do not indicate which particular policies King and his
subordinates ignored. Nor do appellees identify the
clearly-established constitutional rights implicated by such
policies. Thus, we readily conclude that appellees have failed to
demonstrate a violation of clearly established constitutional
rights. See Lassiter, 28 F.3d at 1150. Appellees do make a
specific contention about King's deficiencies with respect to the
Wyatt Consent Decree, i.e., the failure of Eufaula to acquire JCAHO
accreditation. However, this claim fails for the reasons stated in
Part IV.E., supra. The appellees also allege that King knew that
children were being secluded under improper conditions and failed
to take action. For the reasons set forth in Part IV.D., supra,
this argument also fails.
V. CONCLUSION
For the foregoing reasons, we affirm the district court's
denial of summary judgment as to Karen Jurls, and we reverse the
court's denial of summary judgment as to the remaining appellants.
AFFIRMED IN PART and REVERSED IN PART.
EDMONDSON, Circuit Judge, dissenting in part and concurring in
the result in part:
A great deal of today's opinion is right. I cannot concur,
however, in the decision on Karen Jurls.
In my judgment, when Ms. Jurls in 1992 acted or failed to act,
it was not already clearly established as a matter of law that the
rights, under the fourteenth amendment's due process clause, of
mental patients involuntarily civilly committed to state
institutions would always be the same as the rights, under the
eighth amendment, of convicts in prisons even if the circumstances
were otherwise similar. Therefore, I cannot agree that Ms. Jurls
(and every reasonable social worker in her place) would be expected
to know that Greason v. Kemp, 891 F.2d 829 (11th Cir.1990)—a prison
case decided on eighth amendment grounds—clearly established as a
matter of law the rules governing her conduct outside of a prison
and under the fourteenth amendment.
The difference between a prison and some other kind of
institution and the difference between the eighth amendment and the
fourteenth amendment's due process clause are enough, at least, to
cloud the question. To apply Greason outside of a prison is not to
follow Greason, but to extend it. I do not believe that nonlawyers
must foresee such extensions or forfeit their immunity. To me,
this practice flies in the face of the idea that qualified immunity
protects against personal liability unless the defendant's acts
violated clearly established pre-existing law.
I know that the Supreme Court in Romeo wrote among other
things that persons civilly committed are "entitled to more
considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish." But those
words are not the holding of Romeo. They explain the Romeo
decision in part: they explain why the "deliberate indifference"
standard used for prisons was not adopted for mental institutions.
But Romeo does not hold that every act that violates the eighth
amendment rights of a prisoner will doubtlessly violate the due
process rights of those involuntarily civilly committed to state
institutions. In my view, this idea is not clearly established as
a matter of law now and was not so established in 1992.
I do not say that the Supreme Court's words that I have quoted
are totally without significance; they have some value as
predictors. But, I do say the words do not establish law, in
themselves. And, by the way, this Circuit has also never held that
the due process rights of mental patients always, at least, equal
the eighth amendment rights of prisoners. Therefore, today's
court's heavy reliance on Greason—an eighth amendment decision—as
the case that in 1992 had already clearly established rights
outside of the eighth amendment's prison context seems too shaky.
I cannot go along.
For me, Greason, in the light of the words I have quoted from
Romeo, does suggest that courts might ultimately decide that the
law requires mental health workers outside of prisons to follow or
to exceed the eighth amendment guidelines. But, in Lassiter, we
said for precedent to suggest something about the applicable law
was just not enough.
We said the "pre-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent
that what defendant is doing violates federal law in the
circumstances." Lassiter v. Alabama A & M University, Bd. of
Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc) (emphasis in
the original).
In 1992, Greason did not (and in my view, as a matter of law,
could not) truly dictate the essential conclusion for Karen Jurls
and those like her who were working outside of prisons. I cannot
hold this social worker to a clearer understanding of the
law—particularly of the precedential authority of Greason—than I
have.
I dissent from the result for Karen Jurls, but concur in the
result otherwise.