Clouthier v. County of Contra Costa

• Decision Date: 14 January 2010
• Docket Number: No. 07-16703.,07-16703.
• Parties: Gregory CLOUTHIER; Ann Clouthier, individually and on behalf of the Estate of Robert John Clouthier, Plaintiffs-Appellants, v. COUNTY OF CONTRA COSTA; Warren Rupf; Matt Foley, Sheriff's Deputy; Erik Steele; Margaret Blush, sued in their individual capacities and as employees of Contra Costa County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

591 F.3d 1232

Gregory CLOUTHIER; Ann Clouthier, individually and on behalf of the Estate of Robert John Clouthier, Plaintiffs-Appellants, v. COUNTY OF CONTRA COSTA; Warren Rupf; Matt Foley, Sheriff's Deputy; Erik Steele; Margaret Blush, sued in their individual capacities and as employees of Contra Costa County, Defendants-Appellees.

No. 07-16703.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2009.

Filed January 14, 2010.

Stan Casper and Thomas A. Seaton, Casper, Meadows, Schwartz & Cook, Walnut Creek, CA, attorneys for the appellant.

Janet L. Holmes, Office of County Counsel, Martinez, CA, attorney for the appellees.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-06-03893-MMC.

Before: M. MARGARET McKEOWN and SANDRA S. IKUTA, Circuit Judges, and FREDERIC BLOCK,^* District Judge.

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge BLOCK.

IKUTA, Circuit Judge:

The plaintiffs in this appeal brought an action under 42 U.S.C. § 1983 alleging that a mental health specialist, two sheriff's deputies, and the County of Contra Costa violated the Fourteenth Amendment due process rights of their son, Robert Clouthier, by failing to prevent his suicide while he was in pretrial detention. The district court granted summary judgment in favor of the defendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's grant of summary judgment as to the two deputies and the County, but we reverse as to the mental health specialist because there are genuine issues of material fact as to whether she was deliberately indifferent to a substantial risk of serious harm to Clouthier.

I

On the evening of July 26, 2005, after an argument with his father at the Clouthiers' home, Clouthier became violent, destroyed a china cabinet, and jumped through a plate glass window, resulting in lacerations and severe bleeding. His family called the police; the sheriff's office responded along with ambulance and fire personnel. After Clouthier's father signed a citizen's arrest for battery, the sheriff's office placed Clouthier into custody for both misdemeanor battery and felony vandalism. Clouthier was extremely upset about being taken into custody. As he was taken into the ambulance, he hit his head against the side of the ambulance several times. Once at the hospital, he refused to have his wounds stitched. The next morning, July 27, Clouthier was booked into the Martinez Detention Facility ("MDF").

At MDF, new detainees fill out a mental health questionnaire during the intake process. If an inmate answers "yes" to certain questions, he is interviewed by a member of Contra Costa County Mental Health Services. The Mental Health Services department, run by administrative director Miles Kramer, works in conjunction with the Sheriff's Department by virtue of a contractual agreement. Mental Health Services provides on-site evaluation, counseling, therapy, suicide prevention, medication management, crisis intervention, and substance abuse counseling, while the Sheriff's Department custodial deputies maintain security and safety in the jail's housing units.

After filling out a mental health questionnaire, Clouthier was evaluated by Sharlene Hanaway, a Contra Costa County Mental Health Specialist. Clouthier told Hanaway several times that he was suicidal, and that he wanted to be "unconscious for the rest of his life." Hanaway described Clouthier as "despondent, hopeless, suicidal" and "one of the most suicidal inmates she had ever seen." Hanaway's notes state that Clouthier had made numerous past suicide attempts, including one incident two months earlier that required hospitalization after he cut his wrists. Hanaway's notes reflect that Clouthier had taken medication for several years, but that he had ceased doing so two and a half years ago.

Hanaway placed Clouthier in a "safety cell" in the intake area of the jail. She had him wear a suicide smock, a stiff garment that cannot be fashioned into a noose. She restrained his ankles and began noting his status every fifteen minutes in an Observation Log. She also approached the mental health workers, including Margaret Blush, and the deputies in the intake area, and advised them that Clouthier was "truly suicidal" and "the real deal."

Hanaway spoke with Clouthier periodically throughout the morning of July 27, "talking to him and making sure he was okay and [asking] what his state of mind was." By that afternoon, Clouthier informed Hanaway that he was not feeling suicidal anymore. Hanaway did not trust him, however, noting "he had multiple suicide attempts before, and given his history and his despondency, his hopelessness, you just don't recover that quickly." Hanaway convinced Clouthier to consider medication, and she called for an emergency consultation with Dr. Douglas Hanlin, a psychiatrist. Hanlin prescribed Effexor XR for Clouthier's depression and Trazodone to help him sleep. Hanlin also recommended that Clouthier be placed in M-Module, a housing section for unstable inmates, and that he subsequently be reevaluated to determine whether a short-term involuntary hospitalization would be necessary.

Around 2 p.m., Hanaway transferred Clouthier to Observation Room 7, one of the rooms in M-Module equipped with large windows through which the Sheriff's deputies can monitor the occupant. Hanaway spoke to Matt Foley, the deputy on duty in M-Module at the time, and asked Foley whether there was room for Clouthier in the M-Module. She told Foley that Clouthier was suicidal, had been suicidal all day long, "had numerous prior attempts," and needed to be on 15-minute checks. As documented in the Observation Log, Foley checked on Clouthier every fifteen minutes for the next five hours, until Clouthier was taken off the Observation Log.

Before she left her shift, Hanaway gave a copy of her notes to Blush and told her that Clouthier "had been very suicidal throughout the day and that [Hanaway] felt that he needed to be in the observation room and that he needed to be observed and [Blush] needed to look in on him." Hanaway left MDF around 6:30 p.m. on July 27.¹

Around 7 p.m. the same evening, Blush went up to M-Module and spoke with Clouthier for "[l]ess than five minutes." She informed Foley that Clouthier could be given regular prison clothes and a blanket but that he was not to be given any utensils or personal hygiene items. She also told Foley that Clouthier could be removed from the fifteen minute Observation Log, and she made an entry to that effect in the log. Blush testified that she took Clouthier off the Observation Log because in her view, the risk of suicide had decreased, although she was uncertain whether it had disappeared. She explained that her "clinical judgment was that Robert was improving, would benefit from having normal jail clothes and bedding and could be further evaluated by mental health staff the following day." However, Blush also agreed that Clouthier was not "out of the woods" yet.

Blush claims she told Foley to keep Clouthier in the Observation Room, and Foley indicated he understood and responded "I'm sitting right here." Foley disputes this. He testified that Blush did not instruct him to keep Clouthier in the Observation Room. Later, he testified that he could not remember if Blush directed him to keep Clouthier in the Observation Room, but that if she had so directed him it would have been something to which he would have paid attention. Foley did not write down Blush's alleged instruction to keep Clouthier in the Observation Room in the "Red Book," a log the deputies kept to inform one another of important events, or otherwise communicate an instruction to the next deputy on duty.

Regardless of whether Blush instructed Foley to keep Clouthier in the Observation Room, Foley did not move Clouthier from the room, and he remained there when Foley left work on July 27. Foley returned on July 28 to find Clouthier was still in the Observation Room. Per M-Module standard practice, Foley continued to check on Clouthier every thirty minutes. Foley ended his duty at 9:30 pm on the evening of July 28 with Clouthier still in the Observation Room. Foley did not return to work until August 1st, when Clouthier had already been moved into the M-Module general population.

The next day, on July 29, Victoria Brown, another mental health specialist, observed Clouthier in Observation Room 7 during dinner hour for three to five minutes. She "understood that he was suicidal," and asked him some questions to evaluate his mental state. She observed that "while he appeared calm . . . he still appeared acute to me, his affect or what I could see on his face suggested that he was still . . . not feeling well." Therefore, she did not think that "trying to have a lengthy conversation would be appropriate at that time." She further testified that she was not "overly concerned with [Clouthier's] situation, given the background information I had on him. He was calm and looked emotionally drained. He looked like he needed rest more than anything." Based on her "over 37 years of working with potentially suicidal mental health patients," Brown's clinical evaluation "was that he was not actively suicidal at the time." Although she "did not feel the need to put him back on the observation log," she did "feel he would benefit from additional time in the observation room." She did not make any notes on Clouthier's medical chart, "as the situation was status quo." She did not confer with any deputies or Mental Health staff regarding her observations.

That evening, Deputy Eric Steele began his shift on M-Module. The other deputies told him that earlier in the week Clouthier had been placed in Observation Room 7 "for being a danger to himself," and since then had been "taken off the Observation Log but had not yet been...