Dolihite v. Maughon

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-6343
D. C. Docket No. CV-92-H-1398-N
MICHAEL LEROY DOLIHITE, individually and as
father and next friend of David Michael
Dolihite; JOYCE MARY DOLIHITE, individually,
Plaintiffs-Appellees,
versus
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.
Appeals from the United States District Court
for the Middle District of Alabama
(January 23, 1996)
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
2
psychiatric services to Eufaula; Drs. Robert Maughon1 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. 2452 (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. at 2458-59. Discovery
was completed. The defendants all moved for summary judgment on
qualified immunity grounds. The district court denied their
1
During 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.
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
motions. Dolihite v. Videon, 847 F. Supp. 918 (M.D. Ala. 1994).
The defendants-appellants brought this interlocutory appeal. We
have jurisdiction.3 Mitchell v. Forsyth, 105 S.Ct. 2806, 2815-16
3
Neither party challenges our jurisdiction under the
recent Supreme Court opinion, Johnson v. Jones, 115 S.Ct. 2151(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(1985). Several "countervailing considerations" persuaded the
Court to decline extending the rule of immediate appealability to
include "evidence insufficiency" issues. Johnson, 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 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
4
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 (1987). This argument raises the core qualified immunity
issue and is, therefore, immediately appealable under Mitchell v.
Forsyth, 472 U.S. 511 (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, ___ F.3d ___,
___, 1995 WL 744033 (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, 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
5
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,
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 (1995) (also
6
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, 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 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, 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
7
(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
problematic behavior at home and at school.4 The court placed
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.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.
8
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
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 death, and had some family history of
suicide.8 Appellees also contend that behavior described in
David's Baldwin County Mental Health Department evaluation could
5
The district court opinion indicates he was admitted on
this date in 1991, but this appears to have been a typographical
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
be construed as psychotic.9 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
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
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."
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
10
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.
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
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.
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.
11
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
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.
12
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 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
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 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
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.
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
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).
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
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 pm 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 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
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.
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.
15
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:
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
observation, Dr. Mazick and David had a short discussion18 during
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).
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.
16
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 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
17
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
substance of more than a few of those complaints.20 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 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.
18
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, (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 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
19
professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision on
such a judgment." 102 S.Ct. at 2454. 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.
20
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, 102 S.Ct. 2727,
2738 (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. 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.
21
Qualified immunity is intended to give officials the ability
to anticipate when their conduct may give rise to liability for
damages. Anderson v. Creighton, 107 S.Ct. 3034, 3042 (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 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.
107 S.Ct. at 3039 (citations omitted).
22
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. 102 S.Ct.
2452 (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. 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
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
23An official violates a prisoner's Eighth Amendment rights when
the official is deliberately indifferent to the prisoner's
serious medical needs. Estelle v. Gamble, 97 S.Ct. 285 (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,
at 1150. The conclusion is set forth in the plain language of
Romeo and requires no analogies.
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.
24
knowing what the appellant knew, would have realized that those
acts violated David's constitutional rights.
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 during his weekly group therapy session;24 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 2225 but
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.
25
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 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
26
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.
27
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.
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.
28
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 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
29
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
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
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.
30
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
31
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 state actors subject to liability under §
1983. See West v. Atkins, 108 S.Ct. 2250, 2259-60 (1988); Ancata
v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.
1985). Because they are individuals subject to liability under
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.
32
§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
a. Facts Relevant to Dr. 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.
33
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
31
She wrote: "MUST be evaluated by Psychiatrist for
antipsychotic medication ...."
34
cursory. Dr. Jenkins wrote that he had reviewed David's case
with David's nurse and therapist, that 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
35
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.
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.
36
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
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
37
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
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,
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.")
38
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
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
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.
39
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
40
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;"
41
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.
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.
42
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.
Similarly, the instant facts are not as egregious as those
presented in Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986).37
There the court concluded that deliberate indifference to medical
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.
43
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 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
44
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
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 constitutional rights, it follows that his alleged
failure to take action on March 8 did not violate clearly
45
from 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
established constitutional law.
46
that David should have been evaluated as clinically depressed
with bipolar 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
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.
47
affidavit makes no effort to evaluate the degree to which Dr.
Maughon had allegedly departed from accepted medical standards.
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.
41
Dr. Nixon, not a psychiatrist, referred David for
evaluation almost two months after Dr. Maughon's initial
evaluation of David.
48
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 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 agasint Dr. Jenkins because Dr. Maughon
is charged with less knowledge and because the particular
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 ...."
49
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 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
50
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
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
43
In his deposition, Dr. Mazick testified that he saw
David in the hallway and that David requested to speak with him.
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.
51
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
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
52
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
53
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.
54
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.
55
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., 102 S.Ct. at 2458, the Court went on to
note that that liberty interest was not absolute. Id. at 2460.
Rather the "'liberty interest of the individual'" had to be
balanced with "'the demands of organized society.'" Id. at
2460. Citing Bell v. Wolfish, 99 S.Ct. 1861, 1874 (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, 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
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.
56
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,
114 S. Ct. 1189 (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.
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
57
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
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.
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.
58
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
59
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
particular defects or inadequacies in his facility.49 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
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.
60
abstractions, which we readily conclude are insufficient. See
Lassiter, 28 F.3d at 1150.
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
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 (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 (1991); Green v.
McKaskle, 788 F.2d 1116 (5th Cir. 1986).
61
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
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
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.
62
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 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
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
63
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 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
claim with respect to Anthony Dykes.
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court's denial of summary judgment as to the remaining
appellants.
AFFIRMED IN PART and REVERSED IN PART.
65