A.H. v. St. Louis Cnty.

• Decision Date: 04 June 2018
• Docket Number: No. 17-1198, No. 17-1393,17-1198
• Citation: 891 F.3d 721
• Parties: A.H., et al., Plaintiffs–Appellants v. ST. LOUIS COUNTY, MISSOURI, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

891 F.3d 721

A.H., et al., Plaintiffs–Appellants

v.ST. LOUIS COUNTY, MISSOURI, et al., Defendants–Appellees.

No. 17-1198

No. 17-1393

United States Court of Appeals, Eighth Circuit.

Submitted: January 9, 2018

Filed: June 4, 2018

James Schottel, Jr., Schottel & Associates, Saint Louis, MO, for Plaintiffs–Appellants.

Priscilla F. Gunn, St. Louis County Counselor's Office, Michael Edward Hughes, Saint Louis, MO, for Defendants–Appellees.

Before LOKEN, BEAM, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

While confined at the St. Louis County Justice Center (the Jail), Jereme Hartwig committed suicide by hanging himself with a bed sheet in his cell. Hartwig’s three children and his mother (Plaintiffs) filed an action against St. Louis County; Dr. Wendy Magnoli, the Jail’s clinical psychologist; corrections officer Lauren Abate; and Herbert Bernsen, Director of the St. Louis County Department of Justice Services. Plaintiffs asserted claims of Fourteenth Amendment violations under 42 U.S.C. § 1983 ; wrongful death under Missouri law, Mo. Rev. Stat. § 537.080 ; and violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq. , and the Rehabilitation Act (RA), 29 U.S.C. §§ 701, et seq. The district court¹ dismissed the ADA and RA claims for lack of standing and subsequently denied Plaintiffs’ untimely motion for leave to amend. Plaintiffs then filed a second action against St. Louis County, asserting the ADA and RA claims. The district court granted summary judgment dismissing Plaintiffs’ Fourteenth Amendment and wrongful death claims in the first action. The district court² then dismissed the ADA and RA claims in the second action. Plaintiffs appeal these orders. We affirm.

I. Background

A. Hartwig was arrested on a probation violation and confined at the Jail on November 1, 2012. A nurse performed the initial medical screening when Hartwig arrived; she recorded his "chief complaints" were asthma

and depression, for which he had received treatment, and "patient denies suicide" and use of alcohol and drugs. The next day, a different nurse added a "Past Medical" note to Hartwig’s file: "Hx of Suicide Attempt by Hanging, received treatment from St. John’s [Hospital]." A week later, a third nurse examined Hartwig and reported he "denies current or past suicidal ideations or attempts."

On December 11, Hartwig saw a nurse practitioner for an asthma

follow up. She reported no suicidal ideation or planning but referred him to the Jail’s mental health services because of his previous suicide attempt. On January 14, 2013, Hartwig saw psychiatrist Sadashiv Parwatikar. Dr. Parwatikar noted a normal affect and that Hartwig did not display or report psychotic features, was well groomed, and denied suicidal ideation, intent, or plan. Dr. Parwatikar noted Hartwig had received medication for depression when he had trouble adjusting to incarceration, had a history of substance abuse, and was facing charges for failure to pay child support.

On January 28, Hartwig was visited by Savannah Cobb, the mother of his child, who told him she was finished with their relationship. Upset, Hartwig hit himself in the head with a phone receiver, inflicting a head wound

. Later that day, he told a physician’s assistant who treated the injury and a nurse that he hit his head accidentally. Based on Cobb’s report, staff concluded he had injured himself and confined Hartwig in the Jail’s infirmary. He was "visibly upset" with infirmary confinement, said he was "just frustrated," and insisted he was "not suicidal." The following morning, he saw an infirmary nurse and signed a release for medical information from St. John’s and another hospital that treated two earlier suicide episodes.³ Hartwig asked to see a "psych," denied suicidal ideations

, and said he acted out of anger at his girlfriend.

That day, Hartwig had his only contact with defendant Magnoli, a clinical psychologist working for St. Louis County. Dr. Magnoli reviewed Hartwig’s medical chart and interviewed him at the infirmary. Based on the chart and the interview, Dr. Magnoli concluded Hartwig "appears to present a low risk of harm to self and others at this time." She placed him on "precautionary status" because of his prior suicide attempts, discharged him from the infirmary, and referred him to a social worker for follow up.

At that time, St. Louis County’s Jail Suicide Prevention and Response Policy (the Policy), classified potentially suicidal inmates. High risk and medium risk inmates were confined in the infirmary. High risk inmates must be observed every five to ten minutes and may not have bed sheets. Medium risk inmates must be observed every fifteen minutes; they may have security blankets if they keep their heads and necks exposed. Precautionary status inmates, the lowest risk classification, were housed in the general population. They must have a cellmate, but the cellmate need not be with the precautionary status inmate at all times. Corrections officers made hourly "key tour" checks of precautionary status inmates during the first two shifts each day, and every forty minutes overnight.

After Dr. Magnoli’s interview, Hartwig returned to general population and was housed with a cellmate. On February 5, defendant Abate was the corrections officer on duty in Hartwig’s fifth floor housing area. She knew Hartwig was on precautionary status and had injured himself with the phone receiver. She conducted the hourly checks required by the Policy. Abate observed Hartwig making a phone call and at dinner. During the 7:25 p.m. check, inmates were permitted to be out of their cells for "day room" time. In her deposition, Abate did not "specifically recall noticing" Hartwig during her checks; a subsequent affidavit averred that she noted Hartwig alone in his cell during the 7:25 p.m. check. About fifty minutes later, Abate unlocked Hartwig’s cell to let his cellmate enter. The cellmate told Abate that Hartwig was hanging in the cell. Abate radioed for assistance, jail staff attempted to revive Hartwig, and he was transported to the hospital, where he died six days later.

As Director of the St. Louis County Department of Justice Services, defendant Bernsen oversaw the operations of the Jail. In the five years prior to Hartwig’s suicide, there had been two suicides in which inmates in a segregation area hung themselves with bed sheets. Neither had been identified as suicidal or placed on suicide precaution. In response, the Jail made physical modifications to the eighth floor segregation area and the infirmary to eliminate bed sheet "anchors" those inmates used for their suicides. Hartwig was the first inmate on precautionary status to commit suicide since the Jail opened in 1998. After his suicide, the Policy was twice amended to prohibit leaving precautionary status inmates alone in their cells, and to house them in cells close to the work station of a corrections officer.

B. Plaintiffs filed the first action in December 2014. The district court dismissed the ADA and RA claims in July 2015 because Plaintiffs did not sue on behalf of Hartwig’s estate. They filed a First Amended Complaint in November 2015 on the last day to amend without leave under the court’s case management order. They re-alleged ADA and RA violations by St. Louis County, falsely alleging they were "concurrently filing in Missouri state court a Petition for Determination of Heirship." In December 2015, the district court dismissed the ADA and RA claims because Plaintiffs had not been determined to be the heirs to Hartwig’s estate. In January 2016, Plaintiffs filed an heirship petition, which the probate court granted in April 2016. Plaintiffs then filed a motion for leave to file a Second Amended Complaint re-alleging the ADA and RA claims. The district court denied the motion, concluding that Plaintiffs could not show good cause because they had not been diligent in meeting case management order deadlines, and that allowing the amendment would prejudice the defendants.

Plaintiffs then filed the second action asserting the same ADA and RA claims. St. Louis County moved to dismiss, arguing Plaintiffs impermissibly split their causes of action and the complaint failed to state a claim. The district court stayed the action pending the outcome of the first case. In January 2017, the district court granted defendants summary judgment in the first case. The court then granted the County’s motion and dismissed the ADA and RA claims in the second case "for the reasons set out in the motion and supporting memoranda." These consolidated appeals followed.

II. Constitutional Claims under § 1983

Plaintiffs allege the individual defendants and St. Louis County violated the Fourteenth Amendment rights of Hartwig, a pretrial detainee, when they failed to protect him from a known risk of harm, that he presented a substantial risk of suicide. "[T]he Eighth Amendment prohibition on cruel and unusual punishment extends to protect prisoners from deliberate indifference to serious medical needs," including the risk of suicide. Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000). Deliberate indifference is "akin to criminal recklessness," something more than mere negligence; a plaintiff must show that a prison official "actually knew that the inmate faced a substantial risk of serious harm" and did not respond reasonably to that risk. Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir. 2006) ; see Farmer v. Brennan, 511 U.S. 825, 836–37, 844–45, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[P]retrial detainees are entitled to at least as great protection as that afforded convicted prisoners under the Eighth Amendment." Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th Cir. 2012) (quotation omitted), cert. denied, 568 U.S. 1089, 133 S.Ct. 865, 184 L.Ed.2d 659 (2013).

The district court ruled (i) that Plaintiffs failed to show that any defendant was deliberately indifferent to a substantial risk that Hartwig would commit suicide, and (ii...