Nagle et al v. Gusman et al, No. 2:2012cv01910 - Document 297 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying Dr. Gore's MOTION 237 for Summary Judgment. Signed by Judge Sarah S. Vance on 2/26/15. (jjs)
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Nagle et al v. Gusman et al Doc. 297 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARGARET GOETZEE NAGLE and J OHN ERIC GOETZEE CIVIL ACTION VERSUS NO. 12-1910 SHERIFF MARLIN GUSMAN, ET AL. SECTION "R" (2) ORD ER AN D REASON S This action arises out of the August 7, 20 11 suicide of William Goetzee, an inm ate of Orleans Parish Prison (“OPP”). Following Goetzee’s death, his siblings, Margaret Goetzee Nagle and J ohn Eric Goetzee, filed this section 1983 civil rights and state-law suit against numerous em ployees of the Orleans Parish Sheriff’s Office, including defendant Dr. Sam uel Gore. 1 Goetzee was a comm ander in the United States Coast Guard Reserve and a civilian employee of the Coast Guard. Goetzee com m itted suicide while being held as a pretrial detainee on the mental health tier of the House of Detention at OPP on charges related to a suicide attem pt five days earlier. On the day of Goetzee’s death, OPP Deputy William Thom pson was assigned to m aintain “suicide watch” of Goetzee. Thom pson repeatedly left his suicide 1 R. Doc. 1. Dockets.Justia.com watch post, and it was during one of these absences that Goetzee comm itted suicide. Dr. Gore was the Medical Director at OPP when Goetzee died. Plaintiffs contend that Dr. Gore had policym aking authority on m atters involving the inmates’ m edical treatm ent, including mental health and suicide prevention, within the prison. According to plaintiffs, OPP’s suicide prevention practices were grossly inadequate, and Dr. Gore condoned a de facto policy of allowing deputies and nurses to leave suicidal inm ates unwatched for significant periods of tim e. For this reason, plaintiffs argue, Thom pson was derelict in his duties as the deputy assigned to conduct direct observation of Goetzee, leading to Goetzee’s death. Dr. Gore now m oves the Court for sum m ary judgm ent on plaintiffs’ section 1983 and state-law claim s. 2 For the following reasons, the Court denies the m otion. 2 R. Doc. 237. I. BACKGROU N D A. Go e tze e ’s Arre s t, In carce ratio n , an d Su icid e On the m orning of August 2, 20 11, Goetzee approached a m arked Federal Protective Services vehicle occupied by a uniform ed law enforcem ent officer. Goetzee opened the front passenger door, entered the vehicle, and seated himself in the front passenger seat. Goetzee lunged for the officer’s weapon, exclaim ing, “I want to kill m yself, give m e your gun.”3 Federal agents arrested Goetzee and transported him to OPP later that day. 4 The next day, on August 3, prison officials brought Goetzee to federal court for his initial appearance on charges related to his conflict with the federal officer during his suicide attem pt the day before. While at court, Goetzee behaved strangely in the presence of attorneys, federal officers, and the judge. A representative for Goetzee informed the court that he was “obviously having m ental issues.”5 Back at OPP, a nurse alerted OPP’s Chief of Psychiatry, Dr. Charles “Mike” Higgins, to Goetzee’s behavior, and Dr. Higgins ordered that Goetzee be transported to University Hospital to “rule 3 R. Doc. 266, Exhibit AA. 4 R. Doc. 248-1 ¶ 6; R. Doc. 265-1 ¶ 68. 5 See R. Doc. 266, Exhibit ZZ. out delirium .”6 Two days later, on August 5, University Hospital discharged Goetzee back to OPP with a diagnosis of psychosis. 7 On August 6, Dr. Higgins conducted an “Initial Psychiatric Evaluation” of Goetzee. From this evaluation, Dr. Higgins ordered that Goetzee be housed on OPP’s m ental health tier and placed on direct observation. 8 Dr. Higgins’s “direct observation” order required a Sheriff’s Office employee to “m aintain direct and constant observation” of Goetzee at all tim es, i.e., “suicide watch.”9 Goetzee was under suicide watch on August 6 and 7, 20 11. On the m orning of August 7, Deputy William Thom pson was assigned to m aintain supervision of Goetzee. During his suicide watch shift, Thom pson left his post at least three tim es, leaving Goetzee unobserved each tim e. During these absences, Goetzee went unobserved for an hour and a half, fifteen m inutes, and two hours, respectively. During Thom pson’s final absence, an inm ate notified another on-duty officer that Goetzee was lying on the floor of his cell, unresponsive. Apparently, Goetzee had repeatedly swallowed 6 R. Doc. 266, Exhibit I. 7 R. Doc. 248-1 ¶ 11; R. Doc. 265-1 ¶ 73. 8 R. Doc. 266, Exhibit J . 9 See, e.g., R. Doc. 266, Exhibits D-E. wads of toilet paper and asphyxiated him self while Thom pson was not m onitoring him . 10 As a result of these events, Thompson pleaded guilty to the crime of m alfeasance in office. While under oath, and as part of his plea, Thompson accepted the state’s factual basis for the charge. The factual basis specified that Thom pson was assigned to continuously m onitor Goetzee; that he left his post three tim es for one and one-half hours, fifteen m inutes, and two hours, respectively; that another inm ate discovered Goetzee unconscious while Thom pson was not monitoring him; and that Thom pson had fraudulently subm itted an observation checklist for August 7, 20 11, because the checklist indicated that he had continuously m onitored Goetzee all day when in fact Thom pson had not done so. 11 The Court has already granted sum m ary judgment in favor of plaintiffs on their section 1983 and state-law claim s against Thompson. The Court has also granted sum mary judgm ent against Sheriff Gusm an on plaintiffs’ statelaw vicarious liability claim s and partial sum m ary judgm ent on plaintiffs’ section 1983 claim s. 12 10 See R. Doc. 266, Exhibit AA at OPSO 12531. 11 See generally R. Doc. 248, Exhibit E. 12 R. Doc. 113. B. D r. Go re ’s Alle ge d Re s p o n s ibility fo r Go e tze e ’s Su icid e Dr. Gore served as the Medical Director for OPP from August 20 0 6 until 20 14. 13 As Medical Director, Dr. Gore’s responsibilities included “supervis[ing] daily operations” at OPP and “integrat[ing] m edical services with security functions.”14 According to Orleans Parish Sheriff Marlin Gusm an, Dr. Gore was also responsible for developing OPP’s polices “with respect to mental health issues.”15 Dr. Gore testified at his deposition that, as Medical Director, he was responsible for OPP’s m edical policies because Sheriff Gusman delegated policym aking authority to him for m edical issues. 16 Regarding m ental health issues and suicide prevention specifically, Dr. Gore testified that he worked with Dr. Higgins, OPP’s Chief of Psychiatry, to develop appropriate protocols for treating the suicidal inm ates. 17 OPP m aintained a written suicide prevention policy founded upon direct observation of suicidal inm ates. Specifically, the written policy required that “all inm ates with active suicidal ideation . . . be directly 13 R. Doc. 266, Exhibit EEE; R. Doc. 266, Exhibit CC at 16. 14 R. Doc. 266, Exhibit C at 40 -41. 15 R. Doc. 266, Exhibit MM at 58. 16 R. Doc. 266, Exhibit CC at 38. 17 Id. at 38-39. observed by the Security staff at all tim es.”18 According to OPP’s written policy, “periodic monitoring [was] a suboptim al solution [because] the few m om ents required to successfully comm it suicide necessitates continuous, direct observation.”19 According to plaintiffs, Dr. Gore was involved in Goetzee’s m ental health treatment as soon as Goetzee arrived at OPP. Goetzee’s August 2 conflict with the federal officer was reported by various news outlets. Sheriff Gusm an understood Goetzee to have attem pted “suicide by cop,” and Gusm an specifically instructed Dr. Gore to m ake sure that Goetzee was directly observed while at OPP. 20 Dr. Gore and OPP’s Chief of Security assured the sheriff that Goetzee would be watched. 21 In addition, while Goetzee received treatm ent at University Hospital during his incarceration, Dr. Gore notified Sheriff Gusm an and other OPP officials about Goetzee’s im pending return. Dr. Gore reported, “[Goetzee] is no longer delirious, but 18 R. Doc. 266, Exhibit D. 19 Id. 20 R. Doc. 266, Exhibit MM at 186. 21 Id. has active suicidal ideation. . . . I assum e he will be returning [in] 1-2 days . . . .”22 Plaintiffs’ evidence also suggests that Dr. Gore knew, throughout his tenure as Medical Director, that OPP’s approach to m ental health treatm ent was inconsistent with OPP’s written policy requiring “continuous, direct observation.” For exam ple, the general layout of OPP’s m ental health tier, where Goetzee was housed, was not conducive to direct, continuous observation. According to plaintiffs, regardless of where a direct observation deputy sat or stood on the m ental health tier to conduct suicide watch, the deputy was physically unable to view the entirety of the three cells that held suicidal inm ates. 23 Plaintiffs also point to evidence showing that Dr. Gore received com plaints from Dr. Higgins and lower-level staff about the deputies on direct observation. When Dr. Gore assum ed the position of Medical Director, Dr. Higgins told him that “frequently there is no deputy to watch [suicidal inm ates].”24 Nurses and deputies who worked on the m ental health tier echoed Dr. Higgins’s concerns. Deputy William Thom pson, who left 22 R. Doc. 266, Exhibit U. 23 R. Doc. 266, Exhibit A at 163-64; R. Doc. 266, Exhibit DD at 62-63. 24 R. Doc. 266, Exhibit OO at 71-72. Goetzee unobserved on the day of his death, testified at his deposition that direct observation deputies left suicidal inm ates unobserved “all the tim e” and “everybody knew it.”25 According to Thom pson, these deputies could often be found sleeping in another area of the prison “but nobody cared.”26 Deputy Tyrone William s sim ilarly testified that both m edical and security superiors knew suicidal inm ates were often unattended, but “nobody did anything about it.”27 Nurse David Schaible also testified that when he first started working at OPP, he com plained about deputies being unable to directly observe all of the suicidal inm ates on the mental health tier. 28 According to Schaible, he stopped com plaining after a few m onths because “nothing changed.”29 Dr. Gore adm itted to receiving his “fair share of phone calls about not having folks on – in place for direct observation. . . . [T]hat has always been the case. I think it has . . . always been a frustration.”30 He also explained 25 R. Doc. 266, Exhibit A at 156. 26 Id. at 162. 27 R. Doc. 266, Exhibit GGG at 143-45. 28 R. Doc. 266, Exhibit DD at 10 6-0 7. 29 Id. 30 R. Doc. 266, Exhibit CC at 225; see also id. at 235. that he knew from 20 0 9 to 20 11, OPP “had difficulties” getting deputies to conduct continuous observation because OPP had staffing issues and deputies “weren’t put in the right spots to do it.”31 Dr. Gore again testified that he knew that “periodically” OPP did not m aintain enough deputies to continuously observe the suicidal inmates. 32 According to plaintiffs, Dr. Gore’s role as Medical Director em powered him to enforce OPP’s written direct observation policy, but Dr. Gore failed to do so. Dr. Gore adm itted that he had a professional and ethical obligation to ensure that actively suicidal inm ates, like Goetzee, received adequate m edical care and that “the key” was m aking sure suicidal inm ates were directly observed. 33 Dr. Higgins explained that he reported any lapses in direct observation to Dr. Gore because “[Dr. Gore] could have spoken to security about m aking sure that the direct observation was done, because he had access to the sheriff.”34 Based on the foregoing evidence, plaintiffs argue that Dr. Gore was deliberately indifferent to Goetzee’s mental health needs and known risk of 31 Id. at 272-73. 32 Id. at 275. 33 Id. at 319-20 , 327. 34 R. Doc. 266, Exhibit OO at 20 4. suicide. For this, plaintiffs seek to hold Dr. Gore liable under 42 U.S.C. § 1983 and Louisiana tort law. C. D r. Go re ’s Mo tio n fo r Su m m ary Ju d gm e n t Dr. Gore now moves for sum m ary judgm ent on plaintiffs’ claim s. Dr. Gore argues that plaintiffs undisputedly cannot prevail on their section 1983 claim s because, according to Dr. Gore, he was not a policym aker at OPP, he did not know of and disregard the risk that deputies would not directly observe Goetzee, and he is entitled to qualified im m unity. Dr. Gore also argues that plaintiffs undisputedly cannot prevail on their state-law claim of negligence because, according to Dr. Gore, plaintiffs have not retained an expert who can opine on the standard of care applicable to Dr. Gore and plaintiffs cannot prove that Dr. Gore’s conduct was the proxim ate cause of Goetzee’s death. II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). III. D ISCU SSION As noted, plaintiffs seek to hold Dr. Gore liable for Goetzee’s death under both federal and Louisiana law. Dr. Gore argues that he is entitled to sum m ary judgment on all of plaintiffs’ claim . The Court addresses each of plaintiffs’ theories in turn. A. Plain tiffs ’ Se ctio n 19 8 3 Claim s Plaintiffs sued Dr. Gore under 42 U.S.C. § 1983 in both his individual capacity and official capacity for violating Goetzee’s rights under the Fourteenth Amendm ent. The elem ents of a section 1983 cause of action are: (1) a deprivation of rights secured by federal law (2) that occurred under color of state law, and (3) was caused by a state actor. See Victoria W . v. Larpenter, 369 F.3d 475, 482 (5th Cir. 20 0 4). Dr. Gore challenges plaintiffs’ ability to prove that he deprived Goetzee of his constitutional rights while Goetzee was incarcerated as a pretrial detainee at OPP. “The State's exercise of its power to hold detainees . . . brings with it a responsibility under the U.S. Constitution to tend to essentials of their wellbeing.” Hare v. City of Corinth (Hare III), 74 F.3d 633, 638– 39 (5th Cir. 1996) (en banc). Accordingly, pretrial detainees have a right to “constitutional essentials” such as safety and medical care, including a right to protection from self-harm . Jacobs v. W est Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 20 0 0 ). “Unlike convicted prisoners, whose rights to constitutional essentials like m edical care and safety are guaranteed by the Eighth Am endm ent, pretrial detainees look to the procedural and substantive due process guarantees of the Fourteenth Amendm ent to ensure provision of these sam e basic needs.” Id. (citing Bell v. W olfish, 441 U.S. 520 (1979)). “The failure to provide pre-trial detainees with adequate protection from their known suicidal im pulses is actionable under § 1983.” Evans v. City of Marlin, 986 F.2d 10 4, 10 7 (5th Cir. 1993) (citing Rhy ne v. Henderson Cty ., 973 F.2d 386, 391 (5th Cir.1992)). Pretrial detainees m ay bring constitutional challenges under two alternative theories: first, that a defendant com m itted an “episodic act or om ission” or second, that a general “condition of confinem ent” violated the detainee’s constitutional rights. See Estate of Henson v. W ichita Cty ., Tex., 795 F.3d 456, 462 (5th Cir. 20 15). Here, plaintiffs have argued both theories in the alternative. See id. (“[T]here is no rule barring a plaintiff from pleading both alternative theories, and a court m ay properly evaluate each separately.”); Shepherd v. Dallas Cty ., 591 F.3d 445, 452 n.1 (5th Cir. 20 0 9) (noting that a district court is not required to “classify” a section 1983 lawsuit as one or the other theory of liability). If plaintiffs present sufficient factual evidence as to both theories, then both theories m ay proceed to the jury. With an episodic-act-or-om ission claim , “the com plained-of harm is a particular act or om ission of one or m ore officials.” Scott v. Moore, 114 F.3d 51, 53 (1997) (en banc). A plaintiff in an episodic-act-or-om ission case “com plains first of a particular act of, or om ission by, the actor and then points derivatively to a policy, custom , or rule (or lack thereof) of the m unicipality that perm itted or caused the act or om ission.” Id. To im pose liability on a defendant in his individual capacity in an episodic-act-or-om ission case, a pretrial detainee m ust establish that the defendant acted with subjective deliberate indifference. Id. A person acts with subjective indifference if (1) “he knows that an inm ate faces a substantial risk of serious bodily harm ,” and (2) “he disregards that risk by failing to take reasonable measures to abate it.” Anderson v. Dallas Cty ., Tex., 286 F. App’x 850 , 860 (5th Cir. 20 0 8) (citing Gobert v. Caldw ell, 463 F.3d 339, 346 (5th Cir. 20 0 6)). To im pose liability on a defendant in his official capacity, and thus hold a m unicipality accountable for the constitutional violation, the detainee “m ust show that the m unicipal em ployee’s act resulted from a m unicipal policy or custom adopted or m aintained with objective deliberate indifference to the detainee’s constitutional rights.” Scott, 114 F.3d at 54; see also Sibley v. Lem aire, 184 F.3d 481, 488 (5th Cir. 1999) (requiring plaintiff to show objective deliberate indifference “[t]o hold superiors liable”). Objective indifference “considers not only what the policy m aker actually knew, but what he should have known, given the facts and circum stances surrounding the official policy and its im pact on the plaintiff’s rights.” Corley v. Prator, 290 F. App’x 749, 750 (5th Cir. 20 0 8) (citing Law son v. Dallas Cty ., 286 F.3d 257, 264 (5th Cir. 20 0 2)). By contrast, a condition-of-confinem ent case “is a constitutional attack on general conditions, practices, rules, or restrictions of pretrial confinement.” Scott, 114 F.3d at 53 (quoting Hare v. City of Corinth, Miss. (Hare III), 74 F.3d 633, 644 (5th Cir. 1996) (en banc)). “[I]n som e cases, a condition m ay reflect an unstated or de facto policy, as evidenced by a pattern of acts or om issions sufficiently extended or pervasive, or otherwise typical of extended or pervasive m isconduct by [jail] officials . . . .” Estate of Henson v. W ichita Cty ., Tex., 795 F.2d 456, 463 (5th Cir. 20 15) (quoting Shepherd v. Dallas Cty ., 591 F.3d 445, 452 (5th Cir. 20 0 9)). Traditional exam ples of condition-of-confinem ent cases include challenges to prison overcrowding, restrictions on inm ate privileges, and disciplinary segregation, am ong other things. See Scott, 114 F.3d at 53 & n.2. “Because a state m ay not punish a pretrial detainee, conditions of confinement for [a pretrial] inm ate that am ount to ‘punishm ent’ violate the Constitution.” Duvall v. Dallas Cty ., Tex., 631 F.3d 20 3, 20 6 (5th Cir. 20 11). To prevail on a condition-of-confinement claim , a plaintiff m ust show that the condition “has no reasonable relationship to a legitimate governm ental interest” and caused the com plained-of constitutional violation. See id. at 20 6-0 7 (citing Bell v. W olfish, 441 U.S. 520 (1979)). The plaintiff is not required to show deliberate indifference, although “the reasonable- relationship test em ployed in conditions cases is functionally equivalent to the deliberate indifference standard employed in episodic cases.” Id. at 20 7 (quoting Scott, 114 F.3d at 54). The Fifth Circuit has at least suggested that condition-of-confinem ent claims are cognizable against individual actors only in their official capacities. See Estate of Allison v. W ansley , 524 F. App’x 963, 970 n.4 (5th Cir. 20 13) (“Appellees’ claim against the individual defendants is properly analyzed as an ‘episodic act or om ission case,’ rather than ‘condition of confinement’ case.”); Jacobs v. W . Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 n.3 (5th Cir. 20 0 0 ) (sam e); see generally Estate of Henson v. W ichita Cty ., Tex., 795 F.2d 456, 463 (5th Cir. 20 15) (noting plaintiffs alleged a condition-of-confinem ent claim against a m unicipality); Shepherd v. Dallas Cty ., 591 F.3d 445, 453 (5th Cir. 20 0 9) (upholding condition-of-confinem ent claim against a m unicipality). 1. Plain tiffs ’ Co n s titu tio n al Ch alle n ge to D r. Go re ’s Alle ge d Ep is o d ic Acts o r Om is s io n s Initially, the Court notes that Dr. Gore’s summ ary judgm ent m otion addresses plaintiffs’ episodic-act-or om ission claim against him only in his individual capacity. Dr. Gore contends that “an episodic act or om ission claim governs allegations against a jail official in his individual capacity,”35 35 R. Doc. 237-1 at 5. without reference to the above-cited authorities explaining that a pretrial detainee m ay also m aintain an official capacity claim on the additional showing of “objective deliberate indifference.” See generally Scott v. Moore, 114 F.3d 51, 54 (1997) (en banc). Focusing only on plaintiffs’ individual capacity claim , Dr. Gore argues that there is no evidence that he knew deputies failed to abide by OPP’s written policy requiring direct observation of suicidal inm ates, and thus no reasonable jury could find Dr. Gore “deliberately indifferent.”36 As explained, a prison official acts with subjective indifference if (1) “he knows that an inmate faces a substantial risk of serious bodily harm ,” and (2) “he disregards that risk by failing to take reasonable m easures to abate it.” Anderson v. Dallas Cty ., Tex., 286 F. App’x 850 , 860 (5th Cir. 20 0 8) (citing Gobert v. Caldw ell, 463 F.3d 339, 346 (5th Cir. 20 0 6)). In inm ate suicide cases, the defendant m ust be aware of a substantial and significant risk that the inm ate will com m it suicide and “effectively disregard[] it.” Jacobs, 228 F.3d at 395. Although “the law is clearly established that jailers m ust take m easures to prevent inm ate suicides once they know of the suicide risk,” it is not clearly established “as to what those measures m ust be.” Id. 36 Id. at 9. Here, plaintiffs have presented sufficient evidence to create a genuine dispute of m aterial fact as to Dr. Gore’s knowledge and alleged deliberate indifference to Goetzee’s risk of suicide. First, certain evidence shows that Dr. Gore knew Goetzee was a suicide risk. Goetzee’s “suicide-by-cop” attem pt was reported in the news, 37 and jail officials understood that Goetzee’s altercation with a federal agent landed him in OPP. 38 Because of Goetzee’s notoriety, Sheriff Gusm an specifically directed Dr. Gore to put Goetzee on direct observation, and Dr. Gore assured the sheriff that Goetzee would be m onitored. 39 Further, Dr. Gore him self notified other jail officials about Goetzee’s “active suicidal ideation.”40 See id. at 396 (finding evidence supported deliberate indifference because official “was fully aware that [inm ate] had actually attem pted suicide once before [and] regarded her as a suicide risk at all tim es during her detention”); cf. Flores v. Cty . of Hardem an, 124 F.3d 736, 738-39 (5th Cir. 1997) (finding sheriff did not act 37 R. Doc. 266, Exhibit VV; R. Doc. 266, Exhibit WW; R. Doc. 266, Exhibit XX; R. Doc. 266, Exhibit YY. 38 See R. Doc. 266, Exhibit MM at 186. 39 Id. at 186-87. 40 R. Doc. 266, Exhibit U; R. Doc. 266, Exhibit CC at 153-54. with subjective deliberate indifference because inm ate never gave any indication of suicidal tendencies). Plaintiffs also point to evidence suggesting that Dr. Gore knew the deputies responsible for directly observing suicidal inmates like Goetzee often eschewed their duties without repercussion. As a general m atter, the layout of OPP’s mental health tier physically precluded a deputy from constantly m onitoring every suicidal inm ate, as required by OPP’s written suicide prevention policy. No m atter where a deputy sat or stood on the m ental health tier to conduct direct observation, he or she could not sim ultaneously observe all three cells where the suicidal inm ates were housed. 41 See Jacobs, 228 F.3d at 396 (explaining that detaining a suicidal inm ate in a cell with a “blind spot” and other hazards was “obviously inadequate”). Additionally, nurses and deputies alike testified at their depositions that the m edical supervisors, including Dr. Gore, were aware that suicidal inm ates went unobserved for long periods of tim e. 42 According to these sources, no one addressed their com plaints about the deputies’ 41 42 R. Doc. 266, Exhibit A at 163-64; R. Doc. 266, Exhibit DD at 62-63. See, e.g., R. Doc. 266, Exhibit A at 155-56; R. Doc. 266, Exhibit DD at 50 -52, 10 2-110 ; R. Doc. 266, Exhibit GGG at 144, 153. failing to conduct direct observation properly. 43 See Dom ino v. Tex. Dep’t of Crim inal Justice, 239 F.3d 752, 756 (5th Cir. 20 0 1) (noting that “ignor[ing] com plaints” m ay am ount to deliberate indifference). Dr. Gore also adm itted to receiving his “fair share of phone calls about not having folks on – in place for direct observation.”44 According to Dr. Gore, “that has always been the case” and has “always been a frustration.”45 The evidence also suggests that Dr. Gore knew about at least two other inm ate suicides that occurred when the inm ates were not directly observed. 46 According to plaintiffs, one of these suicides prompted Dr. Gore to issue an “Intra Departmental Mem orandum” regarding OPP’s written direct observation policy, which required staff to watch suicidal inm ates “at all tim es.”47 See Rhy ne v. Henderson Cty ., 973 F.2d 386, 393 (5th Cir. 1992) (noting that evidence of other suicide attem pts “would have alerted [a prison official] to the need for m ore frequent suicide checks”). 43 See, e.g., R. Doc. DD at 10 6-0 7; R. Doc. 266, Exhibit GGG at 150 -51. 44 R. Doc. 266, Exhibit CC at 225; see also id. 235. 45 Id. 225, 235. 46 Id. at 366-67; R. Doc. 266, Exhibit FFF; R. Doc. 266, Exhibit GGG at 219-21. 47 R. Doc. 266, Exhibit E; see R. Doc. 266, Exhibit AAA (indicating the inm ate’s date of death). Finally, plaintiffs have presented evidence that there were precautions that Dr. Gore could have taken with respect to Goetzee, but did not. Dr. Gore testified at his deposition that as Medical Director, he had a professional and ethical obligation to ensure that actively suicidal inm ates, like Goetzee, received adequate m edical care, which included an obligation “to help make sure that they’re m edically observed.”48 Specifically, Sheriff Gusman expected Dr. Gore “to m ake sure that [Goetzee] was on direct observation.”49 Sheriff Gusman also noted that he considered Dr. Gore the jail’s “lead person” on addressing inm ate suicides and that he expected both security staff and m edical staff to ensure com pliance with direct observation orders. 50 At least one deputy testified consistently with Sheriff Gusman’s expectation, stating that security and m edical staff “worked seam lessly together” on the m ental health tier, including with regard to direct observation inm ates. 51 According to OPP’s Chief of Psychiatry Dr. Higgins, he specifically reported lapses in direct observation to Dr. Gore because Dr. Gore “had access to the sheriff,” and Dr. Gore “could have spoken to security about 48 R. Doc. 266, Exhibit CC at 319-20 , 327. 49 R. Doc. 266, Exhibit MM at 186-87. 50 Id. at 84-86, 341-42. 51 R. Doc. 266, Exhibit LL at 194-95. m aking sure that the direct observation was done.”52 Dr. Gore also worked with the security staff to im plem ent OPP’s suicide prevention procedures. 53 At least one m ember of the security staff explained that he understood m edical staff to share the responsibility of enforcing OPP’s written direct observation policy. 54 In light of this testim ony by other witnesses, plaintiffs point to Dr. Gore’s inaction with respect to Goetzee as evidence that he effectively disregarded Goetzee’s known suicidal im pulses. Dr. Gore testified that he would expect someone to take “corrective action” against a deputy who left his direct observation post, but that he, as Medical Director, had no authority to discipline the security staff. 55 Though Dr. Gore adm itted that he could discipline nurses for failing to report a deputy who shirked his direct observation duties, there is no evidence that he ever did so. 56 Dr. Gore also adm itted that he did not take any steps to ascertain whether his staff 52 R. Doc. 266, Exhibit OO at 20 4. 53 Id. at 13. 54 See R. Doc. 266, Exhibit RR at 112-13, 143. 55 R. Doc. 281-3, Deposition of Dr. Sam uel Gore, October 9, 20 14, at 76- 80 . 56 Id. at 73-74. com plied with OPP’s written suicide prevention policy, which required m edical staff to form ally report lapses in direct observation. 57 Dr. Gore further adm itted that even after he was aware that deputies neglected their direct observation responsibilities, it “never occurred” to him to use OPP’s tier logs (which tracked the com ings and goings of suicide watch deputies), nursing forms, or other direct observation form s to ensure that OPP’s staff followed his suicide prevention directives. 58 Taken together, this evidence plausibly supports plaintiffs’ contention that Dr. Gore was aware of Goeztee’s risk of suicide and knew suicide watch deputies were often derelict in their duties, but nonetheless failed to take additional precautions or otherwise ensure that Goetzee was directly observed. This evidence is sufficient to preclude sum m ary judgment on Dr. Gore’s liability in his individual capacity. See Jacobs v. W . Feliciana Sheriff’s Dep’t, 228 F.3d 388, 396 (5th Cir. 20 0 0 ) (affirm ing denial of sum m ary judgm ent when jail official knew that an inm ate “exhibited a serious risk of suicide and placed her in conditions he knew to be obviously inadequate”). 57 Id. at 10 6-10 8. 58 R. Doc. 266, Exhibit CC at 210 -11. Although Dr. Gore does not form ally address plaintiffs’ episodic-actor-om ission claim against him in his official capacity, Dr. Gore does argue that he cannot be held liable in his official capacity because Sheriff Gusman is the only official policym aker for OPP. 59 While the parish sheriff is undoubtedly “the keeper of the public jail of his parish,” see La. Rev. Stat. §§ 13:5539(C), 15:70 4, the issue here is whether Dr. Gore m aintained policym aking authority regarding the m ental health treatm ent of OPP’s inm ates. “An official m ay be a policym aker . . . in a particular area or on a particular issue.” Beattie v. Madison Cty . Sch. Dist., 254 F.3d 595, 60 2 (5th Cir. 20 0 1); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[T]he challenged action m ust have been taken pursuant to a policy adopted by the official or officials responsible under state law for m aking policy in that area of the city’s business.”). Generally, a prison physician “shall attend the prisoners who are confined in parish jails whenever they are sick.” La. Rev. Stat.15:70 3(A). Here, Sheriff Gusman 59 In arguing his position, Dr. Gore relies on Quatroy v. Jefferson Parish Sheriff’s Office, Nos. 0 4-451, 0 4-1425, 20 0 9 WL 1380 196 (E.D. La. 20 0 9). There, the Court determ ined that, between the Sheriff and the parish governing authority, the Sheriff had final policym aking authority on m anaging the provision of healthcare within the jail. Id. at *5-6. The facts here are dissim ilar because the Court m ust determ ine whether the Sheriff delegated policymaking authority on matters of medical care to the Medical Director of the jail. testified that the OPP’s Medical Director “m ade policies with respect to m ental health issues.”60 Dr. Gore sim ilarly explained that Sheriff Gusm an “delegated policy-m aking authority to [Dr. Gore] with respect to m edical issues,” including m atters of mental health. 61 Accordingly, this argum ent is without m erit. Cf. Jackson v. Ford, 544 F. App’x 268, 272 (5th Cir. 20 13) (noting that sheriff declared in a sworn affidavit that he did not delegate policym aking authority and prison official testified that she had not been given policym aking authority). 2. Plain tiffs ’ Co n s titu tio n al Ch alle n ge to Go e tze e ’s Co n d itio n s o f Co n fin e m e n t Again s t D r. Go re Dr. Gore relies on two argum ents to prove that there is no dispute of m aterial fact on plaintiffs’ condition-of-confinement claim against him. First, Dr. Gore argues that he is not a policym aker at OPP and therefore cannot be liable in his official capacity. Second, Dr. Gore argues that the undisputed facts show that OPP m aintained sufficient suicide-prevention policies for its inm ates. Dr. Gore’s policym aker argument here fails for the sam e reasons explained above. As to Dr. Gore’s argum ent that OPP’s suicide prevention 60 R. Doc. 266, Exhibit MM at 58. 61 R. Doc. 266, Exhibit CC at 38. policies were adequate, plaintiffs have m arshaled enough evidence in the record to withstand sum m ary judgment on this point. To m aintain a condition-of-confinement claim , a plaintiff m ust show (1) a condition of an inm ate’s confinem ent that is (2) not reasonably related to a legitim ate governmental interest and that (3) violated the inm ate’s constitutional rights. See Edler v. Hockley Cty . Com m ’rs Court, 589 F. App’x 664, 668 (5th Cir. 20 14). A “condition of confinem ent” can be a rule, restriction, practice, or general condition of pretrial confinem ent. Id.; Scott v. Moore, 114 F. 3d 51, 53 (5th Cir. 1997) (en banc). If the plaintiff seeks to base his or her constitutional claim on an unstated rule or policy, however, the plaintiff m ust show that one or m ore jail officials’ “acts or om issions were sufficiently extended or pervasive, or otherwise typical of extended or pervasive m isconduct by other officials, to prove an intended condition or practice.” Estate of Hensen v. W ichita Cty ., Tex., 795 F.3d 456, 465 (5th Cir. 20 15). In challenging plaintiffs’ summ ary judgm ent evidence, Dr. Gore relies on OPP’s written policy, which required “all inm ates with active suicidal ideation . . . to be directly observed . . . at all tim es.”62 According to Dr. Gore, 62 R. Doc. 266, Exhibit D; R. Doc. 266, Exhibit E. OPP trained its deputies to abide by this policy, and Deputy Thom pson knowingly abandoned his post when he left Goetzee unattended. Dr. Gore argues that there is no evidence that OPP’s written policy of providing direct, continuous observation of suicidal inm ates violated Goetzee’s constitutional rights. Dr. Gore’s arguments here m iss the point. Plaintiffs do not challenge OPP’s written policy of direct observation as unconstitutional. Rather, plaintiffs argue that OPP m aintained an unstated or de facto policy of interm ittent or periodic observation, instead of the direct, continuous observation that plaintiffs believe these suicidal inm ates required. Indeed, Dr. Gore adm itted that an unenforced written policy is “kind of worthless.”63 To prevail on this de facto policy theory, plaintiffs m ust dem onstrate that Dr. Gore’s conduct was “sufficiently extended or pervasive, or otherwise typical of extended or pervasive m isconduct by other officials.” See id. As outlined in the preceding section, plaintiffs have presented sufficient evidence that deputies routinely failed to conduct direct, continuous observation of the inm ates on suicide watch, and that m edical staff—both lower-level nurses and superiors like Dr. Gore—knew about it. Plaintiffs 63 R. Doc. 266, Exhibit CC at 37-38. argue that Dr. Gore perpetuated the problem by failing to take corrective action against security and m edical staff who did not com ply with OPP’s written policy. Therefore, plaintiffs have presented sufficient disputed facts to survive summ ary judgm ent on their condition-of-confinem ent claim. 3. D r. Go re ’s As s e rtio n o f Qu alifie d Im m u n ity Dr. Gore’s final argum ent on plaintiffs’ section 1983 claims is that the doctrine of qualified im m unity protects him from liability because plaintiffs fail to establish that he violated Goetzee’s constitutional rights. Qualified im m unity shields governm ent agents, sued in their individual capacities, “from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Behrens v. Pelletier, 516 U.S. 299, 30 5 (1996) (citation om itted). The defense of qualified im m unity is unavailable in a suit against a state actor in his official capacity. Kentucky v. Graham , 473 U.S. 159, 166 (1985). Here, plaintiffs sue Dr. Gore in both his individual and official capacity. If a party asserts the defense of absolute or qualified im m unity in good faith, the burden shifts to the nonm ovant to rebut it. Disraeli v. Rotuna, 489 F.3d 628, 631 (5th Cir. 20 0 7). To rebut an absolute or qualified im m unity defense, the plaintiff m ay not sim ply rely on allegations in the pleadings, but m ust produce competent sum m ary judgm ent evidence raising a genuine issue of m aterial fact. Morales v. Boy d, 30 4 F. App’x 315, 318 (5th Cir. 20 0 8). Specifically, the plaintiff m ust identify facts supporting the conclusion that (1) “the defendant’s conduct violated [the plaintiff’s] constitutional right” and (2) the “defendant’s conduct was objectively unreasonable in light of clearly established law at the tim e of the violation.” Terry v. Hubert, 60 9 F.3d 757, 761 (5th Cir. 20 10 ) (citation om itted). Im portantly, “the very action in question need not previously have been held unlawful for a constitutional violation to be clearly established.” Id. at 763. Instead, the “unlawfulness [of the defendant’s conduct] must be apparent,” and “the contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. At the tim e of the alleged violation here, Fifth Circuit law “clearly established” that pretrial detainees like Goetzee have a right to “constitutional essentials” such as safety and medical care, including the right to protection against self-harm . Jacobs v. W . Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir. 20 0 0 ). The Fifth Circuit has also clearly established that “[t]he failure to provide pre-trial detainees with adequate protection from their known suicidal im pulses is actionable under § 1983.” Evans v. City of Marlin, 986 F.2d 10 4, 10 7 (5th Cir. 1993) (citing Rhy ne v. Henderson Cty ., 973 F.2d 386, 391 (5th Cir. 1992)). As the Court has explained, plaintiffs present sufficient evidence to create a dispute of fact about whether Dr. Gore violated Goetzee’s right to safety and m edical care. Plaintiffs point to evidence that Dr. Gore knew Goetzee was suicidal and knew deputies poorly perform ed direct observation of suicidal inm ates like Goetzee, but, according to plaintiffs, Dr. Gore nonetheless did nothing to ensure that Goetzee, or any other suicidal inm ate, was appropriately observed. Because there is a sufficient evidence for a jury to determ ine that Dr. Gore acted with deliberate indifference, the Court cannot conclude that Dr. Gore’s conduct was “objectively reasonable.” Therefore, sum m ary judgm ent on Dr. Gore’s defense of qualified im m unity is unwarranted. See Jacobs, 228 F.3d at 395 (“[T]o defeat qualified im m unity, the plaintiffs m ust establish that the officers in this case were aware of a substantial and significant risk that [the inm ate] m ight kill herself, but effectively disregarded it.”); see also Matis v. Johnson, 262 F. App’x 671, 673 (5th Cir. 20 0 8) (affirm ing court’s refusal to grant qualified im m unity when a fact issue as to deliberate indifference rem ained for the jury). B. Plain tiffs ’ State -Law Claim fo r N e glige n ce Beyond plaintiffs’ federal law claim s, Dr. Gore also argues that plaintiffs cannot sustain their claim for negligence under Louisiana law because plaintiffs have not retained a “Louisiana licensed physician.” Dr. Gore also argues that plaintiffs cannot dem onstrate that Dr. Gore’s conduct was the proxim ate cause of Goetzee’s death because Deputy Thom pson left Goetzee unattended and the Court found Thom pson to be a proxim ate cause of Goetzee’s death. The Court finds each of these argum ents unavailing. Under Louisiana’s general negligence statute, Louisiana Civil Code article 2315, courts conduct a “duty-risk analysis” to determ ine whether to im pose liability. See Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 20 0 8) (quoting Lem ann v. Essen Lane Daiquiries, Inc., 923 So. 2d 627, 63233 (La. 20 0 6)). A plaintiff m ust prove each of five elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard of care (the breach elem ent); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the causein-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope-of-duty element); and (5) actual dam ages (the dam ages element). See S.J. v. Lafay ette Par. Sch. Bd., 41 So. 3d 1119, 1125 (La. 20 10 ); see also Knight v. Kellogg Brow n & Root Inc., 333 F. App’x 1, 6 (5th Cir. 20 0 9) (applying Louisiana law). A plaintiff's failure to prove any one of these elem ents results in a determ ination of no liability. Knight, 333 F. App’x at 6. In claim s against m edical providers, Louisiana law requires the plaintiff to prove first, “the degree of care ordinarily exercised by physicians . . . licensed to practice in the state of Louisiana . . . in a sim ilar com m unity or locale and under sim ilar circumstances”; second, “that the defendant . . . failed to use reasonable care and diligence”; and third, “that as a proxim ate result of . . . the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” La. Rev. Stat. 9:2794(A)(1) – (3). To satisfy this burden, the plaintiff m ust retain a m edical expert who, am ong other things, “is licensed to practice m edicine by the Louisiana State Board of Medical Exam iners . . ., is licensed to practice m edicine by any other jurisdiction in the United States, or is a graduate of [an accredited] m edical school . . . .” La. Rev. Stat. 9:2794(D)(1)(d). Here, plaintiffs have retained medical expert Dr. J effrey L. Metzner. Though Dr. Metzner is not licensed to practice m edicine in the state of Louisiana, he is licensed to practice in at least four other states: Colorado, California, New Mexico, and Pennsylvania 64 —“other jurisdiction[s] in the 64 R. Doc. 244-2 at 17 (Curriculum Vitae of J effrey L. Metzner, M.D.). United States” under Louisiana Revised Statute 9:2794(D)(1)(d). Accordingly, Dr. Gore’s argument that a m edical expert must be licensed in Louisiana fails. As to Dr. Gore’s argum ent that his conduct was not “the” proxim ate cause of Goetzee’s suicide, plaintiffs have presented sufficient evidence to create an issue of fact on this point. First, under Louisiana law, there can be m ore than one cause of a victim ’s harm. See Rando v. Anco Insulations Inc., 16 So. 3d 10 65, 10 88 (La. 20 0 9); Shepard ex rel. Shepard v. Scheeler, 70 1 So. 2d 130 8, 1312 (La. 1997). Thus, the Court’s finding of liability as to Deputy Thom pson does not preclude the jury from finding other actors liable, as Dr. Gore suggests. As noted, plaintiffs’ theory is that Dr. Gore’s position as Medical Director of OPP, as well as his ethical and professional responsibilities as a physician generally, required him to ensure that OPP staff, like Thom pson, properly carried out direct observation orders. Plaintiffs suggest that this is especially true with regard to Goetzee, whom Dr. Gore knew to be acutely suicidal, because Dr. Gore assured Sheriff Gusm an that Goetzee would be watched in accordance with OPP’s written direct observation policy. According to plaintiffs, Dr. Gore’s failure to do so ultim ately led to Thom pson’s leaving his post and Goetzee’s com m itting suicide in OPP custody. Resolution of these factual issues is best left for jury. IV. CON CLU SION After reviewing the evidence in a light m ost favorable to plaintiffs, the Court finds that there are sufficient facts for plaintiffs to proceed to trial against Dr. Gore. For the foregoing reasons, the Court DENIES Dr. Gore’s m otion for sum m ary judgment. 65 26th New Orleans, Louisiana, this _ _ _ day of February, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 65 R. Doc. 237.
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