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Richard v. Board of County Commissioners of Sedgwick County

United States District Court, D. 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, 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.

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. The request was forwarded to Hall, Barnt and Armstrong the next day.

On November 6, 2007, Physician's Assistant Hall prescribed valporic acid (a mood stabilizer), trazadone and fluphenazine (antipsychotics), and benzatropine (to counter side effects of antipsychotics) for Richard. These medications were used in part because Richard had been treated with them in the past and had tolerated them well. Hall entered an order in the chart directing that Richard be seen by Dr. Murphy on November 12, 2007, and that a mental health chart review occur in two weeks. There are no records showing that Dr. Murphy saw Richard on that date or, for that matter, at any time thereafter up to the February 15, 2008 incident.

After the November 6, 2007 prescription by Hall, Conmed offered Richard his medications on a daily basis. Food and medications were brought to him each day.

On or about November 15, 2007, Dr. McNeil, the medical director, saw Richard and spoke to him about his colon cancer and the benefits of chemotherapy. Richard again declined chemotherapy. McNeil's notes indicate Richard was "awake, alert and oriented times 3, is very appropriate, bright affect and very interactive today, " and he "has no current complaints." The medical history in McNeil's notes and assessment state that Richard's schizophrenia was "well controlled." McNeil explained to Richard at some length the benefits of chemotherapy for his colon cancer, but his notes reflect that "Mr. Richard[s] feeling at this point is at his current age, his life expectancy will be less than that of a potential recurrence of tumor and he does not desire to have chemotherapy at this time."[7] The notes state that Richard "clearly understands my concerns about his cancer and potential for recurrence" without chemotherapy and indicate that Richard was agreeable to follow up on an out-patient basis.

On November 20, 2007, Hall reviewed Richard's chart. He continued Richard's medications and ordered a medication review in four weeks.

On November 22, 2007, a deputy spoke with Hall about giving Richard an injection to calm him down. The deputy's log states that Richard had attempted to flood his cell, was cussing at everyone, was screaming loudly and making threats, was demanding to be fed, and was continuing to call the deputy a "white motherfucker." Hall declined to authorize injections even though the deputy said to Hall that injections had routinely been given to inmates in the past.

On November 27, 2007, Barnt saw Richard in the pod. Her mental health progress note indicates the reason for the visit was an "officer request F/U [follow-up]." The notes reflect that Richard was disheveled, had bad hygiene, had been urinating out of his cell door, and could not remember when he last took his medications. Her notes state that he had sporadic medication compliance. Her overall assessment was that he was "unchanged" and the plan was for him to remain on the current medication review schedule. Barnt testified that because some non-schizophrenics urinate out of their cell doors, such behavior by Richard didn't raise enough of a red flag for her to go running back to Dr. Murphy or someone to say "you have to do something today." She believes she also factored in that Richard was a diabetic whose blood sugar was "out of whack, " and people with that problem sometimes behave in ways they do not recall when their blood sugar is back in bounds.

On December 6, 2007, Judge Warren Wilbert of the Sedgwick County District Court, the judge presiding over Richard's pending criminal cases, granted a defense motion for a competency evaluation. The order provided that Richard's criminal cases were suspended until further order and directed that a competency evaluation of Richard be made at COMCARE of Sedgwick County to determine if Richard was able to understand the nature and purpose of the criminal proceedings against him and to assist in his own defense. The director of COMCARE was ordered to report back to the court within 90 days with the results of the examination and an opinion concerning Richard's competence to stand trial. Apparently due to a mixup by the attorneys in the criminal case, however, the court's order was not delivered to COMCARE until February 22, 2008.

On December 17 or 18, 2007, Dr. McNeil again counseled Richard about his colon cancer, but Richard again declined chemotherapy.

On December 18, 2007, Hall saw Richard and noted that Richard was cooperative and his mood was congruent, but he was somewhat disheveled. According to Hall's notes, Richard felt his medications were helping somewhat with the voices (auditory hallucinations) but he was still bothered by them. Hall noted that Richard "seems mostly controlled on current meds." He ordered an increase in Richard's dosage of fluphenazine (antipsychotic), lab work to check Richard's valporic acid (mood stabilizer) level, a chart review when available, and a medication review in six weeks. On December 19, 2007, Hall noted Richard's refusal of the valporic acid labs.

On or about December 26, 2007, Barnt noted a clinician's recommendation that injections be started on Richard. The record cited by the parties does not clearly establish who made this recommendation or the circumstances behind it, although indications are that the clinician was Hall.

On or about December 27, 2007, Hall saw Richard and noted he was not taking his oral medications at all. His hygiene was poor, he was uncooperative, argumentative, defensive and tense. He became belligerent with Hall and then "returned to normalcy for him." He was responding to internal stimuli. Hall's notes indicate his assessment was "unchanged" but that Richard's schizophrenia was worsening without medications. The "subjective" portion of Hall's progress note included the comment: "Implement long-acting antipsychotic med. when needed." It also said Hall will "[continue] to monitor daily." On or about that same day, Hall ordered that Richard's medications be continued and he scheduled a review in one week. He ordered that Richard could be given short-acting injections of 10 mg of fluphenazine (antipsychotic) with 2 mg of Cogentin (benzatropine - to reduce side effects) for acute aggressive behavior every six hours as needed. Hall and Dr. Murphy had discussed the availability of such "as needed" [prn] short-term injections should Richard become acutely suicidal or agitated.

Records show that Richard was offered psychotropic medication twice a day, for a total of 197 times, between November 6, 2007 and February 15, 2008. Some days he took all of his pills, while on other days he took one, some, or none at all.

Records show that Richard requested or was scheduled for blood sugar tests 80 times on 53 different dates through February 14, 2008. He refused testing on 16 of those occasions.

b. Testimony of Conmed personnel.

Dr. McNeil testified that Richard's behavior was bizarre at baseline. He said it would not be unusual for Richard to expose himself to female staff and say inappropriate things to them, or for him to unnecessarily come to "sick call" at the clinic multiple times a day to get his blood sugar checked. When Richard became inappropriate and refused to comply with requests to act properly, the clinic staff had deputies escort Richard from the clinic back to his cell.

Dr. Murphy testified that he saw Richard on occasion during his incarceration. Defendants cite no evidence, however, that Murphy ever formally evaluated Richard, nor do they provide any evidence of what these encounters consisted of. According to Murphy he also checked on Richard several times in his cell, but again, no evidence is provided that any psychological evaluation or other substantive meeting occurred during these "checks."

Dr. Murphy testified Richard's behavior had been fairly consistent ever since Murphy first treated him at Good Shepherd in 2002. He said Richard was intrusive and profane whether or not he was medicated and that his typical behavior included threats to hurt deputies and sexual remarks to females but that "he never followed through." Murphy said it was not unusual for Richard to kick and bang on his cell, scream, yell, talk gibberish, tear up pieces of toilet paper and dance around them, and stay up all night. Murphy also said it was not unusual for Richard to expose himself and to say inappropriate things to women. He said Richard's behavior "waxed and waned." Dr. Murphy testified there was no long-term harm to Richard from these behaviors or from Richard claiming to be "Black Jesus" or urinating under his cell door. Murphy said if Richard had physically tried to harm himself or had laid hands on another inmate or a deputy, he would have directed that he be medicated. Murphy testified that Richard's behavior in the jail was not causing permanent harm and did not indicate that an emergency existed.

The fact that Richard was sometimes refusing to take his medication was known by a number of the mental health staff at the jail, including Hall and Murphy. Murphy was aware that Richard sometimes took his medication and sometimes did not. Murphy generally did not examine records showing Richard's behavior but relied on Hall to give him the pertinent clinical information about Richard.

Both Dr. Murphy and Dr. McNeil told Hall that Richard's behavior waxed and waned with or without medications. Dr. Murphy instructed the mental health team to alert him if there was a change or a problem with Richard, indicating he wanted to be notified if Richard engaged in behavior different from the sort described above, which Murphy considered "normal" or baseline for Richard. Murphy said his sources of information about Richard included personal examination, the verbal report of the Conmed administrator, the verbal report of any nurse or mental health professional who saw Richard, and a verbal report from Hall. Dr. Murphy understood that mental health staff members were to make daily rounds for all inmates in administrative segregation and all racked inmates who were mentally ill.

Dr. Murphy was not involved in the original decision to place Richard in segregation, but he thought segregation was beneficial for Richard, in part because it protected him from abuse by other inmates. Murphy was ordinarily at the jail only one day out of each week. He said the mental health staff was supposed to call him if there was some problem that required his attention.

Dr. Murphy's understanding was that a long-acting type of injection would have required a court order and he could not authorize such injections on his own. Murphy took no steps to obtain a court order authorizing forced, long-term injections of Richard. Murphy's testimony indicates that although he believed such injections would have been medically advisable, he believed Richard had a constitutional right to refuse medication and could not be forced to take the long-acting medication against his will. Plaintiff points out that Dr. Murphy subsequently administered long-acting injections to Richard without his consent and without a court order after Richard was hospitalized due to the incident with Diaz.

Dr. Murphy testified that he could administer a quick-acting injection to Richard against his will on an as-needed basis if Richard was an acute danger to himself or others. Murphy testified he had the authority to make such a determination and to order forced medication without anyone else's approval, but he said such injections would only have affected Richard's behavior for a matter of hours. He indicated that short-acting injections could be given for no more than a 72-hour period without a court hearing. Murphy testified he had previously been told by both the district attorney's office and by a succession of local probate judges that he could not obtain a "civil hold" (that is, he could not initiate a civil care and treatment proceeding through a probate court petition) on an incarcerated patient facing criminal charges. His understanding was that in criminal cases, the procedure for getting a defendant who refused psychotropic medication transferred to a state hospital was for an attorney in the criminal case to request a competency evaluation order from the court.[8]

Murphy testified he believed early on in Richard's incarceration that Richard needed to go to Larned State Hospital for treatment, but he did not believe he had authority to order such a transfer. Murphy testified he attempted to get Richard sent to Larned by directing a staff member to contact the attorneys in Richard's criminal case and ask them to request a court-ordered competency evaluation at Larned. There is no documentation of such a request, however. The public defender who represented Richard at the time testified that no one from Conmed approached her with concerns about Richard's competency.

Dr. Murphy testified that he believed Richard was in touch with reality almost all of the time during his incarceration. According to Murphy, although Richard had hallucinations he understood that they were hallucinations. Murphy also said Richard understood his environment - for example, he knew that he was in jail and knew who he was talking to. Murphy said the fact that Richard had delusions and hallucinations did not put him out of touch with reality.

Hall testified there were two types of injections for inmates: a long-acting one that can last from one to four weeks, and a quick-acting one that can be given every six hours if an inmate is aggressive or hurting himself. Although Hall's prn order authorized the use of the quick-acting type, Richard was never given the injections because according to Hall it was "not clinically indicated, " meaning it never became necessary.

Hall knew that deputies monitored Richard every 30 minutes. He relied on them "to be his eyes and ears" in the pods. Hall monitored Richard through Inmate Observations Forms, inmate logs, phone calls to deputies, the "ILEADS" scheduling system, and his medical chart. He spoke to nurses and social workers in the mental heath unit and sometimes asked them to check on Richard to see if he would take his medications.

The information available to Hall showed that Richard at times engaged in such behavior as proclaiming himself to be "Black Jesus, " cursing at deputies or others, talking to himself, throwing a tray at a deputy, attempting to clog his toilet with toilet paper or linens, banging on his cell door, repeatedly calling deputies on the intercom, yelling in his cell, spitting on his cell door window, urinating under his door or on his lunch tray, making sexually inappropriate comments, masturbating, refusing medications, and refusing showers.

Conmed's policy on involuntary treatment of inmates provided that inmates shall not be subject to treatment against their consent or against their will except in rare instances. If an inmate was a danger to himself or others, the mental health director could order administration of a psychotropic medication regardless of the inmate's wish or consent.

Andrea Skelton, LMSW, began work for Conmed on January 21, 2008. Her education included training on how to evaluate if a person's mental capacity is impaired. She had no medical training, however, and was not certified to give medications or injections. She initially received some on-the-job training from Barnt and Armstrong. On February 4, 2008, Skelton met with Richard for the first time. Hall had asked her to visit Richard to see if he would take his medications. Richard told her he was not going to be taking his medications and that he did not have to.

Lisa Armstrong, R.N., testified she frequently saw Richard on her daily rounds. On February 11, 2008, Armstrong saw Richard and noted in the chart that he became verbally aggressive towards a deputy, spitting and threatening to hurt him. Richard repeatedly said to Armstrong and Kendra Machetlen (Conmed's Health Services Administrator), "I want to lick you." Armstrong's assessment note said Richard was "re-directed" and that he would continue to be monitored on a racked watch. Armstrong said there should be documentation reflecting each of her daily rounds, and she cannot explain why the Conmed defendants have been unable to produce the records of those rounds. Despite this lack of documentation, the court concludes plaintiff has failed to cite evidence creating a genuine issue of fact as to whether Armstrong frequently checked on Richard during her rounds. Against her uncontradicted and at least partially corroborated testimony that she frequently made these rounds, the mere fact that defendants are unable to produce these records does not create a genuine issue of fact as to whether the visits actually occurred.

Richard's medical and mental health history were known to Conmed and to Murphy. For privacy reasons and because of federal HIPPA law, jail deputies did not have access to Richard's medical and mental health records. Based on information in the "ILEADS" computer program, deputies would have generally known that Richard's medical and mental health care was being provided by Conmed and the clinic. That information would have shown that Richard was on a racked watch, that he was being regularly offered medications, and that he was frequently taken to the clinic. Some deputies would have been present and seen when members of the mental health unit conducted visits at Richard's cell. The fact that Richard was mentally ill would have been known to any of the deputies who had any regular contact with him.

In 2007 and 2008, jail deputies deferred to Conmed/clinic staff as to whether it was necessary or appropriate to administer emergency psychotropic medication or to initiate legal proceedings for forced administration of long-term psychotropic medications.

Sheriff's Department sergeants were required to review the deputy daily activity logs and to note the review in the log. Sergeants knew Richard was exhibiting bizarre behavior and was at times threatening deputies. It was also known that Richard's behavior was angering some of the other inmates. At times other inmates verbally taunted and abused Richard. Plaintiff cites evidence that some deputies allowed this and did nothing about it. Other deputies made some efforts to discourage such acts. A deputy log for January 2, 2008, for example, reflects that inmates in the pod were warned by the deputy they would be locked down if they continued "to converse, torment, or try to get inmate Richard's attention...." On February 1, 2008, an entry indicated two pod workers (inmates) had been going to Richard's door and taunting him, trying to get him riled up. The pod deputy ...


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