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Estate of Hammers v. Douglas County

United States District Court, D. Kansas

March 29, 2018

THE ESTATE OF RACHEL M. HAMMERS, DECEASED, et al., Plaintiffs,
v.
DOUGLAS COUNTY, KANSAS BOARD OF COMMISSIONERS, et al., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         On May 12, 2012, Rachel M. Hammers died in her cell at the Douglas County Corrections Facility (“DCCF”). Her estate and three minor children, through her father Joseph M. Harvey, the administrator of the estate and conservator of the children, bring this action against Douglas County, Kansas Board of Commissioners (“BOCC”), and Sheriff Kenneth M. McGovern and Undersheriff Kenneth L. Massey in their individual and official capacities. Plaintiffs claim that Hammers's death was the result of inadequate policies or practices implemented by defendants and because of inadequate training as to the proper implementation of policies and practices. The matter is currently before the court on defendants' Motion for Summary Judgment (Doc. 208). For the reasons discussed below, the court grants defendants' motion in part and denies it in part.

         I. Background

         a. Hammers's Death

         The following facts are summarized and viewed in the light most favorable to plaintiff. There is little dispute as to the general events that took place leading up to Hammers's death. Hammers suffered from alcoholism and had a history of seizures, high blood pressure, and alcohol withdrawal. On February 24, 2012, Hammers pled guilty to two counts of Driving Under the Influence in Douglas County District Court and was sentenced to 12 months of supervised parole in lieu of six months incarceration. She was also ordered to serve 48 hours on each charge. Prior to this incarceration, Hammers consulted with her primary care physician, Dr. Molly Imber, regarding her concerns with alcohol withdrawal and hypertension. Hammers was afraid of having another seizure while incarcerated. Dr. Imber prescribed a tapering course of Librium for alcohol withdrawal and faxed Hammers's medical records to DCCF.

         When Hammers arrived at DCCF on March 23, 2012 to serve her sentence, DCCF staff conducted a Booking Initial Assessment (“BIA”) in which Hammers reported a history of depression, daily alcohol use, a history of alcohol withdrawal, related seizures, and high blood pressure. She also reported taking medications for depression and high blood pressure and Librium to prevent seizures. While Hammers was incarcerated during this time, she experienced both moderate and severe alcohol withdrawal. She was released on March 27, 2012.

         On April 5 and April 12, 2012, the Douglas County District Court issued bench warrants for Hammers's arrest due to parole violations. On April 19, 2012, Hammers checked herself into Lawrence Memorial Hospital for alcohol intoxication, depression, and suicidal thoughts. She was arrested again on April 22, 2012 and during her BIA she reported a history of depression, monthly alcohol use, a history of alcohol withdrawal-related seizures, and high blood pressure. She reported taking medication for depression and high blood pressure and Librium to prevent seizures. Hammers was incarcerated at DCCF until April 30, 2012 without any incidents related to alcohol withdrawal.

         On May 3, 2012, the Douglas County District Court issued a third bench warrant for Hammers's arrest for failing to appear on a parole violation charge. On the morning of May 11, 2012, Hammers called her mother, Mary Harvey, requesting help with her children because the police were at her door. Mary Harvey picked up Hammers's daughter, drove her to school, and then ran errands. When she arrived back at Hammers's apartment around 10:00 a.m., she found Hammers intoxicated. Later that afternoon, Mary Harvey and Rachel's father, Dr. Joseph Harvey, decided to call the police. Around 4:30 p.m., police arrived and noted in the arrest report that Hammers was “drunk” but cooperative. At 5:57 p.m., Officer Troy Miller conducted Hammers's BIA. In the BIA, Officer Miller noted that pursuant to his observation, Hammers was not alcohol intoxicated and did not display withdrawal symptoms. Hammers reported to Officer Miller that she had depression and high blood pressure and had a seizure in 2010. She reported that she drank alcohol daily and had her last drink at 10:00 a.m. that day. Based on his observations, Officer Miller did not see any indication Hammers had any mental or physical problems before he transferred her to the housing unit. Pursuant to DCCF policy, Hammers was scheduled to see the nurse the following day.

         At approximately 6:45 p.m., Hammers arrived in the women's housing pod. Officer Megan Walker briefed Hammers and provided her an Inmate Handbook. She did not notice Hammers displaying any symptoms of alcohol withdrawal. Hammers was placed in a cell with another inmate, Ashley Dubree, who also did not notice Hammers demonstrating any signs or symptoms of withdrawal and did not consider Hammers to be drunk.

         The overnight officer who performed “well checks” throughout the women's pod every 30 minutes did not report any issues of concern involving Hammers. At approximately 7:15 a.m. on May 12, 2012, Dubree and Hammers left their cell to obtain a meal tray. After 15 or 20 minutes, they returned to their cell and went back to sleep. Dubree noticed Hammers was snoring and sounded like she was congested and having a hard time breathing, but otherwise did not think anything was wrong with her. At some point, Officer Walker called Dubree and Hammers to tell them to take a shower and clean up their cell. Dubree eventually finished cleaning the cell and left to take a shower. Officer Walker used the intercom system to ask Hammers if she wanted to take free time. When she did not respond, Officer Walker opened the door to the cell to ask Hammers if she wanted free time, and Hammers appeared to be sleeping. Officer Walker contacted another officer for back-up, but decided to enter the cell alone. She shook Hammers to try to wake her, and when she did not respond, Officer Walker called a code 900 medical emergency. After determining Hammers did not have a pulse, Officer Walker began CPR. At 10:04 a.m., EMTs from the Lawrence Douglas County Fire and Medical entered the cell and took Hammers to Lawrence Memorial Hospital, where she was pronounced dead at 10:46 a.m. The cause of death on Hammers's death certificate listed sudden death due to seizure disorder probably related to ethanol withdrawal due to chronic ethanolism.

         b. DCCF Operations

         Because plaintiffs' claims focus on policies and procedures at DCCF, it is necessary to summarize any relevant police and procedures for purposes of this order. Prior to Hammers's death, Douglas County acknowledged a high incidence of alcohol dependency among DCCF inmates. In a response to a Request for Proposals issued by the City of Lawrence for 2009 Alcohol Tax Funds, the Douglas County Sheriff's Office - Corrections Division, requested funds for substance abuse therapies and care for inmates. Year-end reports in 2009, 2010, 2011, and 2012 issued by DCCF note that many times arrestees are brought to jail under the influence of alcohol and drugs.

         Defendant Sheriff McGovern and defendant Undersheriff Massey (who served as the Corrections Division Undersheriff) were responsible for the safety of DCCF prisoners. The Corrections Division Policy and Procedure Manual contains departmental policies that pertain to the operations of the corrections division. This includes policies and procedures for the booking, house, and medical units. The BOCC was responsible for developing medical contracts for DCCF. On January 10, 2011, the BOCC approved and executed contracts with Dr. Dennis Sale and the Visiting Nurses Association (“VNA”) to provide medical services for DCCF. Both contracts are between the practitioners and the BOCC and are signed by the chair of the BOCC. The contracts outline the duties of the providers, including providing comprehensive health care to inmates and to provide policies and procedures for health services specifically developed for [DCCF] in accordance with American Correctional Association (“ACA”) standards. The contract also specifies the hours of services for the providers. According to the contracts, Dr. Sale was to provide an on-call physician 24 hours a day, 7 days a week, and a licensed physician on-site two days per week for a minimum of three hours a day. Under the VNA contract, VNA was to provide a 24/7 on-call system for nursing staff and the following on-site schedule:

         3- Hours of Services. VNA shall provide the Services during foe following days and

         A. On Monday through Friday, VNA shall provide on-site staff (at the Facility and not else where), as follows:

One Registered Nurse Supervisor from 8;OQ a.m. to 4:00 p.m.
One Licensed Practical Nurse from 8:00 a.m. to 12:00 p.m.
One Certified Medication Aide from 6:00 a.m. to 2:00 p.m. (subject to changes In schedule, hut not total hours, to accommodate Jail physician's schedule). One Licensed Practical Nurse or Registered Nurse, at VNAJs option, from 3:00 p.m. to 11:00 p.m.
B. On Saturday and Sunday, VNA shall provide on-site staff (at the Facility and not elsewhere), as follows:
One Certified Medication Aide from S:OQ a.m. to 10:00 a.m. and from GOO p m to 10:00 p.m.
One Licensed Practical Nurse or Registered Nurse, at VNA's option, from 1030 a.m. to 5:30 p.m.

(Doc. 221-21, at 2.) Therefore, at the time Hammers arrived at DCCF until the time she was taken to the hospital, the personnel scheduled to be at DCCF were:

         • One Licensed Practical Nurse[1] (“LPN”) from 3:00 p.m. - 11:00 p.m. on Friday May 11

         • One LPN from 10:30 a.m. - 5:30 p.m. on Saturday May 12

         • One Certified Medication Aide[2] from 6:00 a.m. - 10:00 a.m. on Saturday May 12 Therefore, during Hammers's incarceration from May 11 until her death on the morning of May 12, there was no medical staff on-site that was qualified to develop a plan of care or diagnose her with any ailments. If, however, an inmate required medical treatment when medical staff was not present or the medical staff on-site was not qualified to make diagnoses, the inmate would be transferred to Lawrence Memorial Hospital.

         The Douglas County Sheriffs Office Corrections Division Policies and Procedures, Policy 7.1 Arrestee Admission Procedures outlines the procedures for arrestee arrival and the booking/intake process. According to Policy 7.1, the Booking Officer will “conduct Arrestee Health Assessment (mental/physical), refer to 7.1 A for diversion of intake due to medical or mental health concerns. The Booking Officer is responsible for determining if the incoming arrestee requires any special considerations such as: significant injuries or illness or significant impairment due to influence of alcohol and/or drugs. According to Policy 7.1 A “Arrestee Health Assessment Diversion Procedures, ” the shift supervisor is responsible for diverting arrestees to a medical/mental health provider if the arrestee appears to have obvious significant injuries requiring medical attention or extreme incoherence due to influence of alcohol and/or drugs. Preliminary screening procedures, promulgated by the Sheriffs Department and VNA, direct the intake corrections staff to ask the arrestee upon arrival the medical questions on the medical admit form. If the inmate is found to have an urgent medical problem, the inmate is to be sent for immediate medical care to see the licensed nurse on duty or to the hospital. A copy of the medical admit form is to be placed in the nurse's file during booking, and the nurse is to review the forms the next working day and see the inmate for urgent health concerns.

         DCCF utilizes the “Spillman Jail Management System” to track inmates. When arrestees arrive for booking, as part of the medical assessment the Booking Officer conducts a BIA, which is incorporated in the Spillman system. The BIA includes medical and mental health questions that the officer reads to the arrestee and then inputs the arrestee's answers. If an inmate has previously taken the BIA, their previous answers should appear under each question. The system then generates red flags, including medical alert flags, to alert users of a potentially dangerous inmates or special care that needs to be taken. When the BIA is complete, two copies of the form are printed, one copy is set aside for nurses, the other goes into the In-Custody Inmate File. Medical alert flags do not appear on the printed forms and there is no written policy instructing officers what to do if a medical alert flag appears in the Spillman system.

         Policies and procedures promulgated by the Sheriff's Department and the VNA also address detoxification. According to these policies, if the correction staff notices someone he/she feels is coming off drugs and alcohol and is showing symptoms, the inmate should be referred to the nurse. In two of the policies, a follow up call to the doctor is required. In one policy the call to the physician is permissive. The polices also do not define any clinical symptomatology would trigger the policy and leaves the discretion up to the corrections officer to decide if they feel the inmate is detoxifying. DCCF also has standing orders with protocols related to alcohol withdrawal which include multiple versions of alcohol withdrawal assessment scales. According to one of the scales, a score of “5” should be given for a previous history of withdrawal, and a score of “5” should be given for a history of alcohol-withdrawal seizures. This scale also includes scoring various symptoms the person is experiencing. Any score of 10 or above indicates moderate to ...


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