Perniciaro v. Lea

• Citation: 901 F.3d 241
• Decision Date: 16 August 2018
• Docket Number: No. 17-30161,17-30161
• Parties: Dominick PERNICIARO, III, Plaintiff-Appellee v. Hampton "Steve" LEA, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); Jeffrey S. Nicholl, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); John W. Thompson, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"), Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

901 F.3d 241

Dominick PERNICIARO, III, Plaintiff-Appellee
v.
Hampton "Steve" LEA, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); Jeffrey S. Nicholl, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"); John W. Thompson, M.D., In his individual and official capacity as administrator and/or employee of Eastern Louisiana Mental Health System ("ELMHS"), Defendants-Appellants

No. 17-30161

United States Court of Appeals, Fifth Circuit.

FILED August 16, 2018

Laura Lee Thornton, Advocacy Center, Joseph Nicholas Mole, Esq., Frilot, L.L.C., New Orleans, LA, for Plaintiff-Appellee.

James Garrison Evans, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, Christopher Neal Walters, Assistant Attorney General, Office of the Attorney General for the State of Louisiana, New Orleans, LA, for Defendants-Appellants.

Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.^*

STEPHEN A. HIGGINSON, Circuit Judge:

Dominick Perniciaro, III, who suffers from schizophrenia, has been committed to the Eastern Louisiana Mental Health System ("ELMHS") since he was arrested for battery and found incompetent to stand trial in 2013. He has sustained numerous injuries throughout his commitment—some minor, some more serious—as a result of physical altercations with other patients and with guards. He filed suit under 42 U.S.C. § 1983, alleging that he received inadequate medical care and that defendants—his treating psychiatrist (Dr. Jeffrey Nicholl), ELMHS’s chief of staff (Dr. John Thompson), and its chief executive officer (Hampton "Steve" Lea)—failed to protect him from harm. Only Lea is a state employee. The other defendants are psychiatrists employed by Tulane University who provide services at ELMHS pursuant to a contract between Tulane and the state. All three defendants moved for summary judgment on the basis of qualified immunity. The district court held that the Tulane-employed defendants could raise the defense, but held that none were entitled to summary judgment. We agree that the Tulane-employed defendants may raise qualified immunity, but reverse the denial of summary judgment. Viewing the evidence

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in the light most favorable to Perniciaro, he has failed to establish that defendants violated his clearly established rights.

I.

A.

Perniciaro’s schizophrenia manifests in symptoms such as auditory hallucinations, paranoia, delusions, and aggression. He suffers from violent outbursts that occur without warning or apparent provocation. Due largely to the unpredictability of his aggressive and assaultive behavior, his doctors have described him as a "challenging" or "very difficult" patient to treat. He has been committed to ELMHS, a mental-health facility owned and operated by the Louisiana Department of Health, since his arrest for battery in 2013. He was found incompetent to stand trial and committed to ELMHS for competency restoration.¹ When deemed competent to stand trial by his treating psychiatrist in 2014, he was discharged to the Jefferson Parish Prison but was again found incompetent by the state court and recommitted to ELMHS. One year later, after again being deemed competent to stand trial, he was found not guilty by reason of insanity. He was recommitted to ELMHS for treatment until no longer dangerous to himself and others.

ELMHS is a state-run facility, but the state has contracted out the provision of psychiatric services to Tulane University.² As with all psychiatrists at ELMHS, Perniciaro’s treating psychiatrist, Dr. Jeffrey Nicholl, is an employee of Tulane, where he serves as a professor of clinical psychiatry and neurology.³ In addition to his teaching duties, he maintains a caseload of 12 to 13 patients at ELMHS. As Perniciaro’s treating psychiatrist, Dr. Nicholl was the leader of Perniciaro’s treatment team and was responsible for developing and updating a holistic treatment plan for Perniciaro’s mental and physical health. Dr. Nicholl was also responsible for making decisions related to Perniciaro’s physical safety, such as separating him from other patients following physical altercations or placing him on some form of restrictive observation as needed.

Dr. John Thompson is the chief of staff at ELMHS. Like Dr. Nicholl, Dr. Thompson is an employee of Tulane University. He is the chair of the Department of Psychiatry at Tulane, but works at ELMHS several days per week pursuant to Tulane’s contract with the state. As chief of staff, Dr. Thompson oversees the provision of all medical and psychological care. He supervises both the psychiatric doctors, who are not state employees, and the medical doctors and nursing staff, who are. Dr. Thompson reports to Steve Lea, the chief executive officer of ELMHS. Lea, who is employed directly by the state, is responsible for overseeing operations at ELMHS, including ensuring that all state policies are followed.

901 F.3d 248

ELMHS has a policy of minimizing the use of physical restraints as a means of preventing patients from harming themselves and others. Accordingly, ELMHS uses alternative measures to deescalate and monitor patients when they are agitated or likely to become violent. In acute situations, patients are given an injection of medication to immediately calm them down. If the medication fails to calm them down and they remain an immediate danger to themselves or others, then physical restraints may be used. Patients who present a continuous risk of hurting themselves or others are monitored pursuant to either arm’s-length observation ("ALO"), meaning that one or two guards must remain within an arm’s length of the patient,⁴ or close-visual observation ("CVO"), which requires a guard to remain within 15 feet of the patient and maintain the patient within sight at all times.

1.

Almost immediately after he was first admitted in 2013, Perniciaro was involved in numerous physical altercations with treatment providers, guards, and other patients. In light of his violent outbursts, Dr. Nicholl placed Perniciaro on ALO within one day of his admission. A few weeks later, while the guards assigned to monitor him assisted with another violent patient, Perniciaro ran out of his room and repeatedly struck another patient, referred to as Patient 3800, in the face. Following that incident, Dr. Nicholl spoke to Patient 3800, who denied any feelings of revenge. Perniciaro remained on ALO for approximately three months, at which point he had not had a violent incident in seven weeks. Dr. Nicholl then downgraded Perniciaro from ALO to CVO. He also prescribed various medications for Perniciaro, adjusting them frequently based on Perniciaro’s level of violence.

By March 2014, Perniciaro had not been involved in any violent behavior in nearly three months. He was taken off CVO, deemed competent to stand trial by Dr. Nicholl, and discharged to the Jefferson Parish Prison. While at the jail, Perniciaro apparently stopped taking his medication and was involved in one physical altercation, which he said was in self defense. He was again found incompetent to stand trial by the state court and ordered to return to ELMHS.

2.

Upon Perniciaro’s readmission to ELMHS, he was evaluated by Dr. Nicholl, who found him to be "quite coherent" with "fairly good" judgment. He was also evaluated by two psychologists who found him to be "fairly stable." It appears Perniciaro went for about two weeks without incident after his readmission. However, that ended early one morning in April 2014, when Patient 3800 ran into Perniciaro’s room after asking to go to the water fountain and hit him in the face. Perniciaro suffered a black eye, bloody lip, and fractured jaw. He was sent to the hospital for treatment, including surgery to repair his jaw. He returned to ELMHS a few days later, and was placed on a liquid diet and ALO for medical purposes in order to prevent choking. According to Dr. Nicholl, Perniciaro was "very different when he came back from the hospital," possibly because he "may not have gotten his medications" while hospitalized.

Following his return from the hospital, Perniciaro was involved in a number of

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physical altercations. For example, on one occasion about two months after his return, he struck one guard in the face, punched another in the groin, and attempted to attack a third. That day, the justification for his ALO was changed from "medical" to "assaultive behavior towards others." On another occasion, Perniciaro hit one guard in the jaw and attempted to bite and scratch the eyes of another. He was also involved in physical altercations with other patients. In the vast majority of such altercations, Perniciaro was indicated as the aggressor.

On one occasion, Perniciaro reported that "they" (apparently referring to guards) had attacked him the night before. He had bruising on his arms, knuckles, hips, chest, and legs, which a doctor determined likely resulted from the use of manual holds to break apart physical altercations. Nonetheless, in light of Perniciaro’s...