Mattie Smith As Pers. Representative For the EState Pernell Burden v. Atkins

• Decision Date: 22 February 2011
• Docket Number: No. 5:09–CT–3064–D.,5:09–CT–3064–D.
• Citation: 777 F.Supp.2d 955
• Parties: Mattie SMITH as Personal Representative for the Estate of Demittarus Pernell Burden, et al., Plaintiffs,v.Greg ATKINS, et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

777 F.Supp.2d 955

Mattie SMITH as Personal Representative for the Estate of Demittarus Pernell Burden, et al., Plaintiffs,

v.Greg ATKINS, et al., Defendants.

No. 5:09–CT–3064–D.

United States District Court, E.D. North Carolina,Western Division.

Feb. 22, 2011.

Paul Carlton Rathke, The Joel Bieber Firm, Greenville, SC, for Plaintiffs.Christopher J. Geis, Womble Carlyle Sandridge & Rice, PLLC, Winston–Salem, NC, Walter G. Merritt, Jay C. Salsman, Harris, Creech, Ward & Blackerby, New Bern, NC, for Defendants.

ORDER

JAMES C. DEVER, III, District Judge.

On March 28, 2007, at approximately 12:15 a.m., Demittarus Pernell Burden (then age 29) (“Burden” or “decedent”), committed suicide in the Bertie–Martin Regional Jail. On March 12, 2009, Burden's mother Mattie Smith (“Smith”), individually and as personal representative for Burden's estate, and Oprah Jackson (“Jackson”), the mother and next friend of Burden's four minor children (collectively “plaintiffs”), filed this action in Bertie County Superior Court [D.E. 1–9]. Plaintiffs sought relief under 42 U.S.C. § 1983 in counts one, two, and three and under North Carolina law in counts four and five. Plaintiffs named as defendants Bertie County Sheriff Greg Atkins, Jail Administrator Craig Friedman, Assistant Jail Administrators William White, Lieutenant Terrance Whitehurst, and Corporal Ricky Ryan, Martin County Sheriff Dan W. Gibbs, Martin County Deputy Sheriff Mackinsey Williams, Southern Health Partners, Trinea Jones, LPN, unknown individual employees of Southern Health Partners, and Southern Health Partners physician John Doe, M.D. See Compl. ¶¶ 4–12, 15–16. On April 6, 2009, defendants removed the action to this court [D.E. 1].

On March 4, 2010, the court dismissed the state law claims in counts four and five because plaintiffs failed to include a certification under the North Carolina Rule of Civil Procedure 9(j) [D.E. 31]. The court also granted summary judgment to Bertie County Sheriff Greg Atkins and Martin County Sheriff Dan W. Gibbs. Id. Thus, the section 1983 claims in counts one, two, and three remain.

On March 12, 2010, Southern Health Partners and Jones filed a motion to compel [D.E. 33]. On March 16, 2010, defendants filed a joint motion to strike plaintiffs' expert disclosure [D.E. 36]. On May 4, 2010, Southern Health Partners and Jones filed a second motion to compel [D.E. 42]. Finally, all defendants filed motions for summary judgment [D.E. 39, 44, 50]. As explained below, the court grants the motion to strike plaintiffs' expert disclosure, grants defendants' motions for summary judgment, and denies the motions to compel as moot.

I.

In the light most favorable to plaintiffs, the facts are as follows. In 1996, Burden (then age 18) was diagnosed with schizophrenia. In 1997, Burden began dating Jackson, who was then a high school junior. See Jackson Dep. 26–28. Burden and Jackson soon began living together with Burden's mother, and (over time) Jackson gave birth to four children. Id. at 26–28, 34–35. Jackson eventually moved out, and Burden sometimes stayed with her and sometimes stayed with his mother. Id. at 29–31. Burden and Jackson stopped dating in 2006 while Burden was in prison for seven months. Id. at 41–42.

Since Burden's schizophrenia diagnosis, several doctors treated him for mental health issues. Burden's mother and Jackson repeatedly had to prod him to take his psychiatric medication. See Smith Dep. 23, 100; Jackson Dep. 57–58. When Burden took his medicine, he seemed normal. When he did not, he heard voices, paced, and fidgeted. See Smith Dep. 54–57.

As an adult, Burden was arrested and confined several times in the Bertie–Martin Regional Jail (“jail”). See Comp. ¶ 34. During one stay, in June and July 2005, he was placed on suicide watch for approximately two weeks. See id. ¶ 22. Except for that one placement on suicide watch, family members never believed that Burden was suicidal. See, e.g., Stephanie Burden Dep. 27–28. Burden never spoke of suicide or attempted to harm himself. See, e.g., Smith Dep. 56, 63, 97; Jackson Dep. 57; Stephanie Burden Dep. 27, 55–56.

Burden and Jackson had a volatile relationship. Jackson Dep. 74. On June 6, 2005, Burden assaulted Jackson and she received medical treatment for her injuries. Id. at 65–66. On January 27, 2006, eight days after Jackson had given birth to one of their children, Burden demanded sex. Jackson refused, and Burden punched her in the face. Id. at 68–70, Ex. 4. Jackson then obtained a domestic-violence protective order against Burden. Id. at 63.

In February 2007, Burden violated the domestic-violence protective order when he went to Jackson's home. See Jackson Dep. 51–55, Ex. 8. The police were called, but Burden fled before the police arrived. On February 17, 2007, Burden voluntarily admitted himself to Northside Mental Health Hospital (“Northside”). At Northside, unbeknownst to Jackson or Burden's other family members, Burden expressed suicidal ideation. See Comp. ¶¶ 28–29; Jackson Dep. 43, 47–48, 140.

On March 10, 2007, Northside discharged Burden, instructed him to take Trazodone, Ability, Ativan, and Cogentin, and scheduled a follow-up appointment for March 13, 2007. See Compl. ¶ 30. On March 12, 2007, Burden went to Jackson's home in violation of the domestic-violence protective order. The police were called, arrested Burden, and charged him with resisting arrest. See Smith Dep. 46–48, 92.

On March 14, 2007, Burden was convicted of resisting arrest and sentenced to 150 days in the North Carolina Department of Correction. See Smith Dep. 92, 95; Jackson Dep. 55–56. While awaiting transfer to state prison, Burden was placed in the jail.

When Burden arrived at the jail, Burden's demeanor was calm, and he did not indicate that he had any medical problems. Friedman Dep. 46. Burden did not appear suicidal. Id. at 46, 59–61. Burden completed a medical screening questionnaire. See Friedman Dep. 46, Ex. 16. Burden only indicated he had “bad nerves” and an allergy to pork. See id., Ex. 16. No risk of suicide was noted. Id. Because Burden's intake screening form was “negative,” a medical examination was scheduled for March 28, 2007, with Southern Health Partners. See T. Jones Dep. 48–49.

Southern Health Partners contracted with the jail to provide medical services to inmates at the jail. See Friedman Dep. 16. Southern Health Partners is a private, independent contractor. Id. In February 2006, Southern Health Partners hired Trinea Jones, a licensed practical nurse, to provide medical services at the jail. T. Jones Dep. 7–8. As part of her employment with Southern Health Partners, Jones received training on suicide prevention. See Harrison Aff. ¶¶ 3–6.

On March 14, 2007, Burden's mother brought Burden's prescription bottles for Trazodone, Abilify, Ativan, and Cogentin to the jail. See Smith Dep. 53–54. Burden's mother provided the medicine to jail personnel, who, in turn, provided them to Jones. See id.; T. Jones Dep. 13–14, 51–54. Jones examined the medicine. See T. Jones Dep. 52–53. The Abilify bottle was empty. See id. Abilify and Ativan were not on Southern Health Partners' formulary (i.e., list of approved drags) and could not be distributed to Burden. See id. at 39, 52–53. As a result, Burden did not receive Abilify or Ativan. See id. Although Jones does not have a specific memory concerning Burden's treatment, Jones believes that she would have contacted the pharmacy and Burden's family regarding any non-approved prescription drugs. See id. at 51–54.

During Burden's incarceration, the jail personnel offered Cogentin and Trazodone to Burden every day. See T. Jones Dep., Ex 18. Jones prepared the medication, but the jail officers provided it to Burden. See T. Jones Dep. 21–26, 39; Whitehurst Dep. 60; Friedman Dep. 44. On some days, Burden did not take his entire dosage. T. Jones Dep. 32–33. The jail does not have a policy on how to handle prisoners who refuse to take their medication. See Friedman Dep. 44. Jail officers cannot force a prisoner to take his medicine. See id. at 60–62.; T. Jones Dep. 33–34.

While incarcerated the jail did not treat Burden as a suicide risk. The jail considers a prisoner to be a suicide risk when he states an intent to commit suicide, tries to hurt himself, or demonstrates erratic behavior, or when a family member advises the jail of such a risk. See Whitehurst Dep. 10–11; Ryan Dep. 11. The jail also considers any prisoner who has ever been on suicide watch to be a suicide risk. See Friedman Dep. 26; Friedman Aff., Ex. A at 2; 10A N.C. Admin. Code 14J.0601(c). When the jail considers a prisoner to be a suicide risk, the jail puts the prisoner on suicide watch. When a prisoner is on suicide watch, jail officials are to observe his cell four times an hour. Friedman Dep. 24; Friedman Aff., Ex. A at 2; 10A N.C. Admin. Code 14J.0601(c). In contrast, when a prisoner is not on suicide watch, jail officials are to observe his cell two times per hour. Friedman Dep. 22; Ryan Dep. 14–15; Friedman Aff., Ex. A at 1; 10A N.C. Admin. Code 14J.0601(a). Because Burden had been on suicide watch in 2005, Burden should have been put on suicide watch and jail personnel should have checked Burden's cell four times an hour. See Friedman Dep. 26; Whitehurst Dep. 25; Friedman Aff. ¶ 4, Ex. A; 10A N.C. Admin. Code 14J.0601(c).

On March 14, 2007, when Burden was booked into the jail, the booking officers were not aware that he had been on suicide watch in 2005. Such information is contained in a prisoner's medical file, which booking officers do not have access to due to privacy provisions in the Health Insurance and Portability and Accounting Act (“HIPAA”). See Friedman Dep. 24–26. The jail administrator can check the prisoner's medical file, but jail officers cannot. Id. at 26–26; Whitehurst Dep. 15–19. Friedman, the jail administrator, and White, the assistant jail administrator, did not check Burden's medical file and also did not recall that Burden had...