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Richard v. Board of County Commissioners of Sedgwick County

United States District Court, District of Kansas

February 18, 2014

RONELL RICHARD, as Administrator of the Estate of EDGAR RICHARD, JR., Deceased, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY; et al., Defendants.

MEMORANDUM AND ORDER

Monti L. Belot, UNITED STATES DISTRICT JUDGE

Before the court are the following:

Motion for Summary Judgment by defendant Paul W. Murphy (Doc. 444); Plaintiff’s Response (Doc. 465); defendant’s Reply (Docs. 481, 484);

Motion for Summary Judgment by Conmed defendants[1] (Doc. 440); Plaintiff’s Response (Doc. 468); defendants’ Reply (Doc. 483);

Motion for Summary Judgment by Sedgwick County defendants[2](Doc. 446); Plaintiff’s Response (Doc. 473); defendants’ Reply (Doc. 486-1).

I. Background ........................................................................................................................................ -3-

II. Undisputed facts ................................................................................................................................. -4-

A. Background ....................................................................................................................................... -5-

B. Murphy’s Treatment of Richard Before Oct. 2007 . . . ......................................................................... -8-

C. Good Shepherd Admission - October 2007 ...................................................................................... -10-

D. Conmed. . ......................................................................................................................................... -12-

E. Richard’s 2007-08 Incarceration ......................................................................................................... -13-

a. Summary of records ........................................................................................................................... -13-
b. Testimony of Conmed personnel ......................................................................................................... -18-

F. February 15, 2008 incident .................................................................................................................... -25-

G. Investigation and Aftermath ................................................................................................................... -28-

H. Sheriffs’ policies; training; supervision of Diaz . ....................................................................................... -30-

I. Opinions of Plaintiff’s Experts ................................................................................................................... -37-

III. Summary Judgment Standards ................................................................................................................. -40-

IV. Analysis ................................................................................................................................................ -41-

A. Dr. Paul Murphy .................................................................................................................................... -41-

1. Deliberate indifference to serious medical needs ...................................................................................... -42-

a. Legal standard ..................................................................................................................................... -42-
b. Discussion .............................................................................................................................................. -44-

2. Failure to Supervise or Train ................................................................................................................... -49-

3. Conditions of confinement ......................................................................................................................... -51-

4. Failure to Protect Richard’s Safety ............................................................................................................. -52-

5. Tort of outrage. . ....................................................................................................................................... -54-

B. Mike S. Hall, P.A. . ................................................................................................................................... -55-

1. Deliberate indifference to medical needs . . . .................................................................................................. -55-

2. Failure to protect Richard’s safety ................................................................................................................ -59-

3. Tort of Outrage ............................................................................................................................................ -59-

C. Conmed Healthcare Management, Inc. . ...................................................................................................... -60-

D. Conmed, Inc. . ........................................................................................................................................... -60-

1. §1983 claims .............................................................................................................................................. -61-

a. Official policy or custom element .................................................................................................................. -61-

b. Causation element ........................................................................................................................................ -61-

c. State of mind element. . ................................................................................................................................. -62

d. Discussion. . ................................................................................................................................................. -63-

2. Tort of Outrage ............................................................................................................................................. -66-

3. Respondeat superior ..................................................................................................................................... -67-

E. Deputy Saquisha Nelson ................................................................................................................................ -67-

1. Deliberate indifference to medical needs . . . ............................................................................................... . -68-

2. Failure to intervene ...................................................................................................................................... -69-

F. Gary Steed, Robert Hinshaw, and Sedgwick County . . .................................................................................. -72-

1. Hinshaw - no personal involvement .............................................................................................................. -73-

2. Steed / Sedgwick County ............................................................................................................................. -73-

a. Failure to train on mental illness . . . ............................................................................................................... -73-

b. Failures relating to medical care ...................................................................................................................... -76-

c. Failure to discipline ........................................................................................................................................ -78-

V. Summary of Remaining Claims ........................................................................................................................ -80-

VI. Pretrial Deadlines ............................................................................................................................................ -81-

VII. Conclusion ................................................................................................................................................. -82-

I. Background.

In 2008, 59-year old Edgar Richard, Jr. (hereinafter “Richard”), who suffered from severe mental illness, was incarcerated in the Sedgwick County jail. On February 15, 2008, he was involved in an incident with Sedgwick County Detention Deputy Manuel Diaz, during which Diaz repeatedly punched Richard in the face. Richard suffered a broken jaw and other injuries and was hospitalized for an extended period.

Plaintiff contends the defendants deprived Richard of federal rights under color of state law, contrary to 42 U.S.C. § 1983, and damaged him by their tortious conduct. The claims include: use of excessive force; failure of a bystander officer to intervene; failure to supervise officers or agents; failure to train officers or agents; deliberate indifference to serious medical needs; unlawful conditions of confinement; failure to protect a detainee; the tort of outrage; and respondeat superior liability for an agent’s unlawful actions. The named defendants include: former Sedgwick County Detention Deputy Manual Diaz, Jr.; the “Sedgwick County defendants” (the Board of Sedgwick County Commissioners, Sedgwick County Sheriff Robert Hinshaw[3], former Sheriff Gary Steed, and Sedgwick County Detention Deputy Saquisha Nelson); the “Conmed defendants” (Conmed, Inc., Conmed Healthcare Management, Inc., and Mike S. Hall, P.A.) ; and Paul W. Murphy, M.D.

II. Undisputed facts.

The court admonished counsel in a letter dated September 10, 2013, regarding the importance of following the rules regarding motions for summary judgment (Doc. 420). Apparently the court’s words were largely ignored. Indeed, the court cannot recall a case with a more problematic presentation of uncontroverted facts. The problems are too numerous to catalogue,[4] but it is surprising that counsel with the combined experience represented here cannot produce statements of uncontroverted facts in accordance with those rules.[5]

A. Background.

The record shows that Richard suffered from severe mental illness for most of his adult life. He was seen at emergency rooms or was hospitalized about 25 times since 1982. He was admitted on numerous occasions to Osawatomie State Hospital, the Topeka State Hospital, Via Christi Medical Center in Wichita, and Via Christi Good Shepherd Campus hospital in Wichita. He was also seen a multitude of times by psychiatrists and other professionals at COMCARE, a Sedgwick County agency that provides mental health and substance abuse services.

Richard was diagnosed as suffering from schizophrenia or schizoaffective disorder, among other things. He suffered from hallucinations and delusions and frequently heard voices. Sometimes the voices told Richard to kill himself or to harm others. He often asserted that he was Jesus. He was at times aggressive, hostile, and verbally or physically threatening to others, including toward his care providers and the police. Richard usually responded to treatment and improved after a period of hospitalization and medications, but sometimes it took weeks or even months to get him to a stable condition. Plaintiff cites evidence that Richard was able to function well at times. But he also frequently quit taking his prescribed psychotropic medication, which was usually followed by periods of bizarre behavior, delusions and hallucinations.

For example, records of Richard’s past behavior indicate that while he was in a holding cell at the jail in 1986, he urinated on the floor, masturbated, talked about killing others, and claimed to be God. A 1999 report indicated that he set fire to an apartment “to get rid of the demons.” In 2001 he bit a staff member at Good Shepherd. On several occasions he caused toilets to overflow, such as during a 2002 stay at Good Shepherd when tried to flush drapes or a shower curtain down the toilet. Richard also had substance abuse problems. He used cocaine, liquor and other substances. He frequently made sexually inappropriate remarks to female health workers and sometimes inappropriately touched them. In 2006 he reportedly masturbated in a McDonald’s restaurant and inappropriately touched a female member of his “Breakthrough Club,” a mental health support group. In September 2006 he was admitted to Good Shepherd after police found crack cocaine in his pocket. Treatment notes from that episode indicate he was verbally aggressive and threatened to kill the police, and he required a “prn”[6] injection during his stay when he became upset with hospital staff.

On October 4, 2006, Richard was in a cell waiting to be booked into the Sedgwick County Adult Detention Facility (hereinafter “the jail”). According to a report by Sgt. Eke Mba, Richard made derogatory remarks about every person passing through the cell and “urinated, defecated, and spat all over” the cell. He spat at Sgt. Mba and refused to come out of the cell. A team of officers had to go in and get him. A struggle ensued in which Richard hit a deputy in the face and broke his glasses.

During 2006-2007 Richard had three pending criminal cases in Sedgwick County District Court. The charges included battery on a law enforcement officer, aggravated battery on a law enforcement officer, and possession of cocaine. On November 28, 2006, the presiding judge held a hearing and found that Richard was competent to stand trial. That finding was apparently based on a competency evaluation performed by Dr. Constance Gaston of COMCARE on November 13, 2006. The evaluation noted that Richard was currently taking the antipsychotic medications being provided him at the jail by Conmed (the contract medical provider at the jail), and that staff noted he can become violent when he stops taking his medications. Richard subsequently entered a guilty plea in all three cases. On June 5, 2007, the presiding judge imposed an imprisonment sentence of 31 months but suspended it and placed Richard on 36 months’ probation.

Richard was seen as an outpatient by COMCARE psychiatrist Dr. Lin Xu on October 3, 2007. The treatment notes point out that Richard had been on disability for severe mental illness since 1988 and was being treated for schizoaffective disorder and personality disorder, NOS [not otherwise specified]. The notes also show that Richard had severe medical conditions including colon cancer, primary hypertension, and non-insulin dependent diabetes. Richard had undergone surgery in July 2007 to have part of his colon removed due to colon cancer. The notes show that Richard declined to undergo the chemotherapy recommended by his oncologist.

B. Murphy’s Treatment of Richard Before Oct. 2007.

Paul Murphy. M.D., graduated from the University of Kansas School of Medicine in 1982 and completed a residency in psychiatry in 1986. He thereafter practiced psychiatry in Wichita, Kansas. He is licensed in six states and is board certified in adult psychiatry.

Dr. Murphy first saw Richard on March 12, 2002 at Good Shepherd. Richard was admitted after having appeared at an emergency room, smeared in grease, reporting auditory and visual hallucinations. Richard reported that sometimes his medications “just stop working” so he abused crack cocaine “to help with the voices.” Dr. Murphy diagnosed Richard as having paranoid schizophrenia and polysubstance abuse. He treated Richard with antipsychotic and other medications. Dr. Murphy’s discharge summary indicates Richard improved with medication, although at some point in his stay Richard required a prn antipsychotic to control his agitation. He was discharged on or about March 18, 2002.

Murphy saw Richard again at Good Shepherd in April 2002. Richard reported he had stopped taking his medications. He was noted as loud, hostile, and speaking with delusional content. Dr. Murphy’s notes indicate that Richard was “grossly psychotic” and exhibited bizarre behavior. Murphy noted that Richard took his medications during this stay but “continued to display psychotic thought processes and difficultly maintaining control” and continued to exhibit bizarre behavior. As a result, a petition was filed under the Kansas Care and Treatment Code and Richard was transferred to Osawatomie State Hospital for treatment.

Murphy saw Richard more than four years later at Good Shepherd, in July 2006, following the previously mentioned incident at McDonald’s. During that stay it was noted that Richard threatened staff, cussed at them, flooded his bathroom floor and was observed talking to himself. He required restraints and prn medication at some point. Richard’s behavior again resulted in a petition being filed for his involuntary commitment to Osawatomie State Hospital for treatment, where he was eventually stabilized and released.

Dr. Murphy saw Richard again on November 20, 2006, and on February 26, 2007, presumably at the jail clinic. Murphy ordered an adjustment in Richard’s medications on these occasions.

On March 19, 2007, Dr. Murphy saw Richard for the purpose of evaluating his competency to make health care decisions in connection with a recommended surgery for colon cancer. At the time Richard was refusing surgery. Dr. Murphy concluded that Richard “is competent to make the choice regarding his healthcare decision & TX [treatment] options.” Richard had the surgery on July 16, 2007.

C. Good Shepherd Admission - October 2007.

On October 29, 2007, Richard was admitted to Via Christi Good Shepherd Hospital after having been off his medications for at least 3 to 4 days. Medical history notes report that during the prior week he had been walking down the street with a knife stating that he was going to “kill black people.” Richard was seen by Dr. Laurie S. Coyner, who restarted Richard on his medications. Her notes indicate Richard was physically intimidating and verbally threatening towards staff during his stay. He was sexually inappropriate and was observed masturbating in front of staff and patients. He threatened to kill several people in the hospital. He appeared to be responding to internal stimuli but denied having hallucinations.

On or about October 31, 2007, Dr. Coyner signed a Mental Health Certificate relating to Richard. Under the Kansas Care and Treatment Act, such forms are used to support a petition to have a mentally ill person involuntarily committed for care and treatment. See K.S.A. § 59-2957. Coyner certified that Richard suffered from a mental disorder and was in need of treatment; that he lacked the capacity to make an informed decision about treatment; and that he was likely to cause harm to himself or others or to property of another. An accompanying petition for an order allowing involuntary treatment of Richard was prepared by an employee of Good Shepherd, at Dr. Coyner’s direction, and was filed with the Probate Department of the Sedgwick County District Court on October 31, 2007.

While Richard was still at Good Shepherd, Dr. Coyner was contacted by Richard’s Intensive Supervision Officer (i.e., probation officer), who informed her there was an outstanding warrant for Richard. She said if Coyner felt Richard was a danger to others and could not be safely stabilized in an inpatient setting, he could be incarcerated and treated at the jail. While Coyner was talking to the officer on the phone, Richard threatened to kill one of the nurses in the unit. Coyner informed the officer of this latest threat and opined that Richard was an ongoing danger to others. The doctor agreed that incarceration rather than inpatient treatment was appropriate under the circumstances. Richard’s probation officer authorized Richard’s arrest and came to Good Shepherd on October 31, 2007 with law enforcement officers, and took Richard into custody.

Coyner’s discharge summary states that Richard was “alert and oriented times four”; that he “continues to make threats to harm others and has continued to be sexually inappropriate and, also, physically intimidating and verbally threatening towards staff and peers”; and that he was not appropriate for readmission to Good Shepherd. Coyner wrote that Richard would “be more appropriate for treatment either in a detention facility or, possibly, at Larned State Hospital for long-term treatment.” His prognosis was judged as “poor due to extensive history of noncompliance, substance abuse, and recidivism.”

On October 31, 2007, Richard was incarcerated at the Sedgwick County jail for alleged probation violations. On November 2, 2007, Richard’s probation officer obtained a judicial arrest warrant for the alleged violations, which included threatening to kill a person, two instances of carrying a concealed weapon, threatening harm to staff and patients of Good Shepherd Hospital, and lewd and lascivious behavior.

D. Conmed.

At all relevant times, Conmed Inc. (hereinafter “Conmed”) contracted with Sedgwick County to provide medical care, including mental health care, to inmates at the jail. Conmed operated the jail’s medical clinic and its mental health unit. Conmend contracted with Bryon McNeil, M.D., to provide medical services to inmates at the jail. McNeil was designated as the medical director.

Conmed contracted with Paul Murphy, M.D. to provide mental health services to inmates at the jail. The agreement required Dr. Murphy to visit the jail a minimum of four hours each week to provide on-site psychiatric examinations. It also provided that Dr. Murphy would provide on-call psychiatric coverage 24 hours a day, 365 days per year.

Conmed employed Mike Hall, P.A., as a physician’s assistant in the mental health unit. Hall was supervised by Dr. Murphy and, when Murphy was not available, by Dr. McNeil. Conmed also employed Registered Nurse Lisa Armstrong and Licensed Master Social Workers Karen Barnt and Andrea Skelton to work in the jail’s mental health unit.

E. Richard’s 2007-08 Incarceration.

a. Summary of records.

Richard engaged in bizarre and disruptive behavior after he was booked into jail. Inmate logs show that on November 2, 2007, he was continually calling deputies from his cell claiming to be Jesus Christ. He made unreasonable demands and then cussed at deputies when his requests were denied. He put his linen in his toilet, prompting deputies to shut off the water to the cell before he could flush it.

The jail’s “I/LEADS” computer information on Richard, which detention deputies had access to, contained alerts for “assaults on staff” and “dangerous.”

On November 4, 2007, Richard was placed on a “racked watch” because of his bizarre behavior. This meant he was confined to his own cell and was segregated from other inmates. Jail policy required deputies to check on him approximately every 30 minutes. Inmates on racked watch could contact the pod deputy by intercom. They were allowed to send and receive mail, have visitors, and make phone calls. Logs indicate Richard frequently tied up the intercom. Although Richard could sometimes see and hear other inmates from his cell, the window on his cell door was sometimes covered over with paper by guards in response to Richard’s frequent banging on the cell door.

Richard was allowed to leave his cell each day for showers. He was also taken out of his cell for court, medical and other appointments.

On November 5, 2007, Sergeant Rhonda Freeman sent an email to the Conmed medical staff informing them that Richard was on a racked watch due to bizarre behavior and asking them to schedule a mental health evaluation if one was not already scheduled. ...


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