Harvey v. County of Ward
| Decision Date | 20 January 2005 |
| Docket Number | No. A1-03-135.,A1-03-135. |
| Citation | 352 F.Supp.2d 1003 |
| Parties | Donna HARVEY, individually and as Personal Representative of Richard D. Harvey, Plaintiff, v. COUNTY OF WARD; Vern Erck, individually and in his official capacity as Ward County Sheriff; Penny Erickson, individually and in her official capacity as Administrator of the Ward County Jail, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Mark Vincent Larson, Larson Law Firm, P.C., Minot, ND, for Plaintiff.
Richard H. McGee, McGee Hankla Backes & Dobrovolny PC, Minot, ND, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's Motion for Summary Judgment filed on October 1, 2004. For the following reasons, the motion is granted.
The plaintiff, Donna Harvey, and Richard Harvey were married in 1998. According to Donna Harvey, Richard Harvey attempted suicide at the age of 17 and suffered a severe head injury in 1989 resulting in memory loss, difficulty comprehending things, and seizures. See Deposition of Donna Harvey, pp. 12, 13, 42. Donna Harvey stated her husband had been committed to a local hospital for mental health issues on October 9, 2001, because he had overdosed on his medications from ankle surgery and was hallucinating. Richard Harvey remained at the psychiatric ward until October 16, 2001. See Deposition of Donna Harvey, p. 20. Donna Harvey obtained a protection order on October 15, 2001, because of her husband's mental instability. See Deposition of Donna Harvey, p. 22. A commitment hearing was held on October 16, 2001. Richard Harvey was not committed, but he agreed to seek outpatient assistance. See Deposition of Donna Harvey, p. 21.
On October 18, 2001, Richard Harvey was arrested for violating the protection order and was incarcerated at the Ward County Jail. At the time Harvey was booked in for incarceration, Officer Virginia Just initiated a medical screening questionnaire. (Docket No. 12, Exhibit A). The questionnaire had two parts. The first part consisted of the booking officer's observations, and the second part was a list of questions the booking officer asks the inmate. Richard Harvey was combative at the time the questionnaire was started, and Officer Just was unable to complete the second section. At a later date, Officer Greg Johnson completed the questionnaire. The "officer observations" section of the questionnaire indicates that Harvey was under the influence of alcohol and that in the view of the officer, Harvey's behavior did not suggest a risk of suicide. The second portion of the questionnaire indicates that Harvey was taking three prescribed medications: hydrocodone, amitriptyline, and florinal. Harvey also responded that he had recently been hospitalized or had seen a medical or psychiatric doctor at "Trinity 3-C" for an "eval." When asked the last time he considered suicide, Harvey answered "Never." When asked whether he was considering suicide at the present time, Harvey answered "No." Harvey also stated he had foot surgery on October 5, 2001.
On October 23, 2001, Harvey asked one of the officers ("Travis") if he would call "Trinity Hospital for me and see if I can admit myself to Psychiatry Ward on my own as soon as possible." (Docket No. 19, Exhibit D). The officer responded, "Provided you are on Medicare/Medicaid you may admit yourself at the Trinity emergency room upon your release (According to the information I received)."
During his incarceration, Richard Harvey met with social worker Bruce Anderson on November 8, November 15, December 6, and December 20, 2001. Anderson's notes from each session contain the same conclusion that "Richard was functioning well in all spheres, with no stated intentions of harm to self or others." (Docket No. 12, Exhibit B).
On November 13, 2001, Correctional Officer Julie Pettys completed the following report:
This morning at approximately 0740 hours, I went into Inmate Harvey's room to give him his morning medications. He put them all in his mouth and swallowed, then took a drink of water. I took a step away from the door and then went back into his room. He had his head down and his hand close to his mouth. I could see one pill in his hand at this point. I said to him, "did you take all of your pills." He shook his head yes, with his hand up, and motioned that he was having trouble getting the pills down. When I left the first time it looked as though he had taken them and he didn't show any sign of problems taking them. Inmate Harvey may be trying to save up some of his medications to take at a later time.
(Docket No. 19, Exhibit D).
In an undated, hand written note, Officer Deryl Martin recorded the following information regarding Harvey:
Mark,
Dr. Hart refused to refill Harvey's pain med (Hydrocodone) today. I got his Amytriplyine filled; he also can get Naproxen filled at N.W. Pharmacy if he decided he wants it as PA Weston ordered a script to be filled when we call them to fill it.
Harvey had a court appearance today. Laura told us his wife informed him she wants a divorce. She feels we should keep an eye on him. He's been OK on our shift and spends a lot of time w/Dejarlais in his cell — seems to be coping. He does have a temper though!
(Docket No. 19, Exhibit B).
In an affidavit, dated November 12, 2004, Donna Harvey states:
I received a phone call from a Ward County jailer requesting that medicines be brought to my husband. The jailer told me that he knew my husband's mind was not right. I told the jailer that he was going to kill himself and felt he should be watched carefully.
(Docket No 22). The affidavit does not identify the jailer with whom Donna Harvey spoke nor does it identify when this conversation took place. In her deposition taken on June 29, 2004, Donna Harvey said:
She [the jail employee] was calling because Rick wanted his medication, wanted me to bring it down, and I told her no, that had just gotten out of the psych ward, he had medications on him. If he needed any, he needed to be taken to a doctor. And she asked me what he was in the psych ward for and I told her.
See Deposition of Donna Harvey, p. 45.
On December 20, 2001, physical therapist Reed Argent, prescribed Harvey a theraband device used for exercising his ankle. Argent describes the theraband as "an elastic material used to provide resistance to increase the effectiveness of exercise." (Docket No. 20). Argent also states that "[b]ecause the Theraband device would be considered contraband, I provided the Theraband directly to the jailer who accompanied Mr. Harvey to his appointment and not to Mr. Harvey." Harvey was instructed to use the theraband twice a day for approximately 15 minutes.
As previously noted, Richard Harvey was seen by a social worker on December 20, 2001, and exhibited no suicidal ideations. However, on December 21, 2001, Harvey attempted suicide by hanging himself in his cell. Harvey apparently used either the theraband and/or a torn blanket as a noose. Harvey was taken by ambulance to Trinity Medical Center where he remained a patient until December 26, 2001, when his family elected to remove him from life support.
Donna Harvey commenced this lawsuit in December 2003 as the personal representative of Richard Harvey and on her own behalf. She sets forth six claims: (1) negligence, (2) violations of 42 U.S.C. § 1983, (3) violations of the North Dakota Constitution, (4) wrongful death, (5) survivorship, and (6) loss of consortium.
It is well-established that summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.2000). A fact is "material" if it might effect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir.1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e); Krein v. DBA Corp., 327 F.3d 723, 726 (8th Cir.2003). A mere trace of evidence supporting the non-movant's position is insufficient. A non-movant must present more than a scintilla of evidence and must present specific facts to create a genuine issue of material fact for trial. F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir.1997). The facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Count II of Donna Harvey's complaint sets forth two different claims under 42 U.S.C. § 1983:(1) a deliberate indifference claim as to Ward County Sheriff Vern Erck and Ward County Jail Administrator Penny Erickson, and (2) a deliberate indifference claim for failure to train against Ward County, Ward County Sheriff Vern Erck and Ward County Jail Administrator Penny Erickson.
The Defendants contend that the 42 U.S.C. § 1983 claim against Ward County Sheriff Vern Erck and...
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