Harrelson v. Dupnik

• Decision Date: 27 August 2013
• Docket Number: No. CV 11–411–TUC–FRZ.,CV 11–411–TUC–FRZ.
• Citation: 970 F.Supp.2d 953
• Parties: Jacquelyn HARRELSON, Plaintiff, v. Clarence W. DUPNIK, Sheriff of Pima County, et al., Defendants.
• Court: U.S. District Court — District of Arizona

970 F.Supp.2d 953

Jacquelyn HARRELSON, Plaintiff,

v.Clarence W. DUPNIK, Sheriff of Pima County, et al., Defendants.

No. CV 11–411–TUC–FRZ.

United States District Court,

D. Arizona.

Aug. 27, 2013.

Anne E. Findling, Joel B. Robbins, Robbins & Curtin PLLC, Phoenix, AZ, for Plaintiff.

Nancy Jane Davis, Tucson, AZ, Denise Hilda Laura Troy, Dickinson Wright/ Mariscal Weeks, Phoenix, AZ, Timothy J. Thomason, Mariscal Weeks McIntyre & Friedlander PA, Phoenix, AZ, for Defendants.

ORDER

FRANK R. ZAPATA, Senior District Judge.

Pending before the Court is a Report and Recommendation issued by Magistrate Judge Estrada. In his Report and Recommendation, Magistrate Judge Estrada recommends denying in part and granting in part Defendants' motions for summary judgment. As the Court finds that the Report and Recommendation appropriately resolved the motions for summary judgment, the objections are denied.¹

Accordingly, IT IS HEREBY ORDERED as follows:

(1) Magistrate Judge Estrada's Report and Recommendation (Doc. 131) is accepted and adopted.

(2) The motions for summary judgment (Docs. 100, 105) are denied in part and granted in part as reflected in the Report and Recommendation.

(3) The parties shall file a proposed Joint Pretrial Order on or before 9/27/13, which shall include, but not be limited to, that prescribed in the form of Joint Pretrial Order attached. As pretrial motions remain to be resolved as the Court expects that the parties will file motions in limine, this case is referred back to the Magistrate Judge to issue a Report and Recommendation as to any motions in limine (or other pretrial motions). Motions in limine shall be filed no later than the date of filing the proposed Joint Pretrial Order. Responses to motions in limine are due 14 days after the filing of the motion. Unless otherwise ordered by the Magistrate Judge, no replies are permitted and motions in limine and responses thereto shall not exceed five pages. After the Court receives the Report and Recommendation, any objections, and issues an Order as to the Report and Recommendation, the Court will withdraw the reference to the Magistrate Judge and issue a final pretrial Order setting dates for trial, the pretrial conference, and the filing of proposed jury instructions, voir dire and verdict forms.²

REPORT AND RECOMMENDATION

HÉCTOR C. ESTRADA, United States Magistrate Judge.

Pending before the Court are: (1) the Defendants Clarence Dupnik and Pima County's (hereinafter “County Defendants”) Motion for Summary Judgment (Doc. 100) (hereinafter “MSJ”) and (2) Defendants Conmed Healthcare Management Inc., and Conmed Inc.'s (hereinafter “Conmed Defendants” ¹) and Defendants Steven R. Galper, M.D., Roger Bishop, M.D., Karen Yashar, R.N., and K. Richey, RN.'s (hereinafter “Individual Conmed Defendants”) ² Motion for Partial Summary Judgment (Doc. 105) (hereinafter “MPSJ”). The motions came on for oral argument on June 19, 2013.

Pursuant to the Rules of Practice of this Court, this matter was referred to undersigned for a Report and Recommendation. (Doc. 10).

For reasons stated herein, the Magistrate Judge recommends that (1) Defendant K. Richey be dismissed from this action; (2) the Pima County Defendants' MSJ be granted in part and denied in part and (3) the Conmed and Employee Defendants' MPSJ be granted in part and denied in part.

I. Factual and Procedural Background

This case arises from the death of M.J.H., a 17 year old juvenile remanded to the custody of Defendant Dupnik in the juvenile housing unit at the Pima County Adult Detention Complex (hereinafter “PCADC”). Plaintiff Jacquelyn Harrelson, (hereinafter “Plaintiff”) individually and on behalf of the statutory beneficiaries of M.J.H., and Estate of M.J.H., filed an Amended Complaint in state court which Defendants removed to this Court. (Doc. 1). Plaintiff filed a SAC naming the following Defendants: (1) Clarence W. Dupnik, Sheriff of Pima County; (2) Pima County, a political subdivision of the State of Arizona; (3) Conmed Healthcare Management, Inc.; (4) Conmed, Inc., doing business as Conmed Healthcare Management; (5) Steven R. Galper, M.D.; (6) Roger R. Bishop, M.D.; (7) Karen Yashar, R.N.; and (8) K. Richey, R.N. (Doc. 39). Plaintiff alleges five counts in her SAC: Count One alleges that the Pima County Defendants committed negligence and/or gross negligence for breach of duty to provide care, custody and control regarding M.J.H.'s incarceration at the Pima County Jail; Count Two alleges that the Conmed Defendants committed negligence and/or gross negligence; Count Three alleges that all Defendants committed wrongful death pursuant to A.R.S. § 12–611 et seq.; Count Four alleges, pursuant to 42 U.S.C. § 1983, that Defendant Dupnik in his role as official policy maker for the PCADC, used isolation in violation of the Eighth Amendment proscription against cruel and unusual punishment and in violation of the Fourteenth Amendment's guarantee of due process of law ³; and Count Five alleges, pursuant to 42 U.S.C. § 1983, that Conmed and Employees were deliberately indifferent to M.J.H.'s serious medical needs, in violation of the Eighth Amendment.

Defendant Conmed Healthcare Management has contracted with Pima County to provide medical and mental health care at PCADC. (Plaintiff's Separate Statement of Facts (Doc 116, pp. 40–76) (hereinafter “PSSOF”) ¶ 9; see also id. at ¶¶ 29–30). Defendant Conmed employs the following Defendants: Dr. Bishop, who completed his residency in family practice and was Conmed's Medical Director in 2010; Dr. Galper, who completed a residency in neurology and psychiatry ⁴; and Karen Yashar, who is an R.N. with a bachelor's degree in nursing. (Conmed and Employee Defendants' Statement of Facts (Doc. 106) (hereinafter “CESOF”) ¶¶ 1–2, 4, 7, 9–10). At all relevant times, the medical and mental health care of inmates housed at PCADC was provided by Conmed and its employees. (County Defendants' Statement of Facts (Doc. 102) (hereinafter “CDSOF”), ¶ 3).

On April 1, 2010, M.J.H. was booked into PCADC and housed in the juvenile pod with instructions to keep him separate from another inmate, “C.N.” (PSSOF, ¶ 63). On April 20, 2010, C.N. assaulted M.J.H. after a corrections officer “failed to notice the keep-separate order” and C.N. and M.J.H. were together in the recreation yard at the same time. (CDSOF, Declaration of Lt. Meister, ¶¶ 17, 20). On April 22, 2010, after deciding to press charges against C.N., M.J.H. reported that he feared for his safety and was afraid he would get “jumped” while in the dayroom and as a result, he was placed on protective custody status, also known as Administrative Segregation or ASI (“ASI”), because “PCADC policies and procedures provide that juvenile inmates are to be placed on protective custody ... status ... where a juvenile reports threats of physical harm from other inmates.” ( Id. at ¶¶ 10, 22, 23, 24; see also PSSOF, ¶ 70 & PSSOF, Exh. 1, p. IR75). A juvenile on ASI participates in school, the Level Advancement Program, and receives mail, television, dayroom, outdoor recreation, phone calls, visitation, and commissary privileges. ( Id. at ¶¶ 12–13).

At intake at PCADC on April 1, 2010, M.J.H. had reported that he: had been diagnosed as bipolar and with depression a year and one-half prior while in a detention facility in California; had taken Depakote in the past for bipolar disorder; and had attempted suicide four years prior. (CESOF, Exh. 9, pp. 53, 231–234). On April 2, 2010, M.J.H. was seen by Jason Zantanos, mental health staff, who found that M.J.H. suffered from situational depression. (CESOF, ¶ 25). On April 7, 2010, in response to M.J.H.'s request for sleeping medication, PA Barry McMillon ⁵ saw M.J.H., assessed “poor sleep”, and prescribed Trazadone. (CESOF, Exh. 9, pp. 51, 229). On April 21, 2010, Licensed Associate Counselor (hereinafter “LAC”) Raichelle Sutton saw M.J.H., although the reason for such appointment is unclear: the Conmed and Employee Defendants state it was for a sick call complaining of lack of sleep; Plaintiff states M.J.H. had complained about anxiety attacks, depression and insomnia. (CESOF, Exh. 9, p. 225 & Exh. 5, pp. 55–56, 58; PSSOF, Exh. 3, p. 4209). LAC Sutton did not perform a full psychiatric assessment, diagnosed insomnia and referred M.J.H. to the prescriber who had previously prescribed Trazadone. (CESOF, Exh. 5, pp. 56, 58). During M.J.H.'s incarceration, he received Trazadone for either seven or ten days. (PSSOF, Exh. 13, p. 98).

On April 26, 2010, M.J.H. was seen by LAC Brent Gunderson. (CESOF, Exh. 8, pp. 6, 30, 39). LAC Gunderson testified that M.J.H. told him:

he had been seeing demons, then the demons had gone away. He saw spots on the wall where the demons' eyes had been before....[H]e was on PC status ..., he spends roughly 23 hours a day locked away.

He acknowledged the stress that he feels. That's certainly something that he told me specifically. He was feeling as though he could go insane, he told me that. He said that he feels extremely lucky if he can fall asleep before breakfast, so all of that is what he told me. And that he was sleeping very little. He was experiencing some hallucinations because of lack of sleep.

* * *

Then he described a dream that he had where—the dream itself is where he had been seeing the demons....But then he said that he was still seeing spots on the walls even after the dream, after he woke up, where the demons' eyes were.

( Id. at pp. 39–40). According to LAC Gunderson, while M.J.H.'s statements could have indicated “some psychotic symptoms”, post-traumatic stress disorder (hereinafter “PTSD”), or acute stress syndrome, he believed that stress was the cause of M.J.H's distress. ( Id. at p. 48). M.J.H. requested a psychiatric evaluation. (CESOF, Exh. 9, p. 217; PSSOF, Exh. 15, pp. 43–44). PCADC psychologist Andrew Stropko, Ph.D., agreed with LCA Gunderson's assessment, although psychosis, bipolar disorder and substance abuse were in the...