“Special duty” doctrine

McLaughlin v. City of Martinsburg, 2017 WL 3821808 (W.Va. Sept. 1, 2017)

West Virginia Supreme Court denies plaintiff’s claim that police officers were liable under “special duty doctrine” for negligently failing to take into protective custody a person with mental illness who was reported to be acting strangely and who was later struck and killed by an automobile.

Found in DMHL Volume 36, Issue 3

Eighth Amendment right of jail inmate to be free from deliberate indifference to risk of suicide; qualified immunity

Estate of Clark v. Walker, 865 F.3d 544 (7th Cir. 2017)

Seventh Circuit denies motion for summary judgment and claims of qualified immunity by jail deputy and contract nurse in suicide case, where deceased inmate’s estate alleged defendants failed to follow jail’s suicide protocols despite testing that showed maximum suicide risk; private contract nurse found ineligible to invoke qualified immunity.

Found in DMHL Volume 36, Issue 3

Excessive force ; qualified immunity

Roell v. Hamilton Cty., 870 F.3d 471 (6th Cir. 2017)

Sixth Circuit upholds summary judgment in favor of law enforcement officers sued for use of excessive force by estate of man who died while being physically subdued and tasered by the officers in response to his acting out behaviors and active resistance of the officers.

Found in DMHL Volume 36, Issue 3

Excessive force; qualified immunity

S.B. v. County of San Diego, et al., 2017 WL 1959984 (9th Cir. May 12, 2017)

Ninth Circuit reverses district court’s refusal to grant sheriff deputy’s motion for summary judgment based on qualified immunity, finding that, while the officer’s use of lethal force was objectively unreasonable, there were no existing court decisions at the time of the event that were specific enough to give the deputy clear prior notice that his use of force in those particular circumstances would be unreasonable.

Found in DMHL Volume 36, Issue 2

Eighth Amendment/Conditions of Confinement/Deliberate Indifference

Rasho v. Elyea, No. 14-1902, 2017 U.S. App. LEXIS 3976 (7th Cir. Mar. 7, 2017)

Eighth Amendment/Conditions of Confinement/Deliberate Indifference: Seventh Circuit reverses grant of summary judgment to contract psychiatrists in state prison system where inmate with serious mental illness alleges that psychiatrists effected his transfer out of a special mental health treatment unit in retaliation for the inmate’s grievances against staff, resulting in denial of effective treatment.

Found in DMHL Volume 36, Issue 1

Qualified Immunity, Law Enforcement, Excessive Force

Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017)

Ninth Circuit held that (1) disputation about the reasonableness of deputy’s actions did not preclude granting qualified immunity, and (2) deputy was entitled to qualified immunity for the tasing and fatal shooting of the decedent because the decedent held no clearly established right not to be shot in circumstances in which he was larger than two officers, was not incapacitated by the taser, and was “winning” in hand-to-hand combat with the officers.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Excessive Force, Law Enforcement

Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017)

Eighth Circuit held that deploying a Taser against a person in a public area who was refusing law enforcement commands to drop a knife did not violate a clearly established right and the officers were eligible for qualified immunity.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Duty of Care, Jails and Prisons

Bays v. Montmorency Cty., 874 F.3d 264 (6th Cir. 2017)

Sixth Circuit ruled that there is a clearly established Fourteenth Amendment right to sufficient treatment for a serious medical problem and upheld a district court’s denial of qualified immunity to a jail nurse where there was evidence that the nurse acted with deliberate indifference to an inmate’s serious mental illness.

Found in DMHL Volume 37, Issue 1

Statutory Immunity for Mental Health Detention Decisions Does Not Extend to Accidents Occurring During Detention

Jacobs v. Grossmont Hosp., 133 Cal. Rptr. 2d 9 (Cal. Ct. App. 2003)

In California, an individual can be detained for 72 hours ("72-hour hold") in a designated facility for treatment and evaluation if the person is determined to be, as a result of mental disorder, a danger to self or others or gravely disabled. California has also established that individuals authorized to detain a person for a 72-hour hold cannot be held liable for exercising this authority. The California Court of Appeals, Fourth District, has held that this immunity from liability is limited to the decision to detain and does not extend to accidents that may occur in the course of the detention....

Found in DMHL Volume 23 Issue 1

Refusal to Grant "Parental Immunity" to Residential Child Care Facility Not Disturbed

Wallace v. Smyth, 786 N.E.2d 980 (111. 2002), cert. denied, Maryville Academy v. Wallace, 124 S. Ct. 43 (2003)

The Supreme Court declined to review a ruling by the Illinois Supreme Court that refused to grant immunity from liability to a residential child care facility and its employees.  The facility and seven of its employees were sued when a 12-year-old boy who had been placed in their care for a 90- day diagnostic assessment died.  After being placed in restraint for more than four hours, the boy died from positional asphyxia....

Found in DMHL Volume 23 Issue 1

Connecticut Physicians Who Submitted Reports About the Competence of a Psychiatrist to Practice Safely Were Not Entitled to Absolute Immunity

Chadha v. Charlotte Hungerford Hosp., 865 A.2d 1163 (Conn. 2005)

State licensing boards or a corresponding legislatively designated agency typically have the authority to investigate licensed practitioners and to discipline them for unprofessional conduct.  However, these boards and agencies generally have limited resources to engage in routine surveillance of the activities of licensed practitioners and generally do not undertake an investigation unless a report of unprofessional conduct has been filed with them...

Found in DMHL Volume 24 Issue 2

Physician Employed as a "Physician Extender" by a State Psychiatric Facility Is Not Protected by Sovereign Immunity and Thus May Be Sued for Malpractice

McCloskey v. Kane, 604 S.E.2d 59 (Va. 2004)

Unless waived, the state is protected by the doctrine of sovereign immunity from malpractice claims. Employees of the state may be similarly protected. In Virginia, the greater the control of an employee's actions by the Commonwealth, the greater the likelihood of immunity. However, state­ employed physicians may not be entitled to this immunity because they must exercise their professional skill and judgment when treating patients and thus tend not to be subject to the control and direction of others. James v. Jane, 282 S.E.2d 864 (Va. 1980)...

Found in DMHL Volume 24 Issue 1

Sovereign Immunity Bars ADA Suit Against a State for Failing to Fund Community­ Based Services Through Medicaid

Bill M. v. Neb. Dep't of Health & Human Servs. Fin. & Support, 408 F.3d 1096 (8th Cir. 2005)

In many states there is a shortage of community placements and services for individuals with a developmental disability, even though these states created an entitlement to these community programs under their Medicaid program. Because the absence of community programs may necessitate that such individuals be institutionalized, various lawsuits asserting these individuals' legal rights are being violated have been brought against states and state officials....

Found in DMHL Volume 25 Issue 1

Guardian Ad Litems, Social Workers Given Immunity for Efforts to Protect Individuals Lacking Decision-Making Capacity; Ruling Not Disturbed

Dalenko v. Wake County, N.C., Dep't of Human Servs., 578 S.E.2d 599 (N.C. Ct. App. 2003), cert. denied, 124 S. Ct. 1411 (2004)

Every state has a mechanism that enables a state or local agency to intervene to protect vulnerable individuals when the care they are receiving is deemed inadequate.  This protection is typically afforded children, elder persons, and adults who lack decision-making capacity.  Among the interventions this agency may pursue are periodically monitoring the care being provided, obtaining a protective order, removing the person from the custody of the current care giver, or initiating guardianship proceedings.  When guardianship proceedings are initiated, a guardian ad litem will often be appointed to insure the person at risk is represented and has a spokesperson in the proceedings.  The current care provider may contest the actions taken, assert they are unwarranted and improper, and file a lawsuit for damages that resulted.  The Court of Appeals of North Carolina has established that it will be rare in North Carolina that such cases can be successfully  pursued...

Found in DMHL Volume 25 Issue 1

Social Workers Immune from Liability for Failure to Adequately Investigate and File Documents Concerning Reported Child Abuse; Ruling Not Disturbed

Forrester v. Bass, 397 F.3d 1047 (8th Cir. 2005), cert. denied, 126 S. Ct. 363 (2005)

Every state has a mechanism for the reporting and investigation of child abuse and neglect, with many states, including Virginia, establishing similar mechanisms for abuse and neglect involving "aged or incapacitated adults." The United States Supreme Court in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), held that although a state may violate the federal constitution when it fails to protect individuals who are placed in state custody or who are exposed to danger created by the state, the Constitution does not require a state to protect individuals from abuse committed by private actors. A series of lawsuits since then have attempted to find means by which DeShaney can be side-stepped to hold state officials responsible under the federal constitution for a failure to adequately investigate reports of child abuse in the community...

Found in DMHL Volume 25 Issue 1

Indiana Supreme Court Finds Juvenile Mental Health Statute Conveys Use and Derivative Use Immunity during Therapeutic Polygraph Examination

State v. I.T. 4 N.E.3d 1139 (Ind. 2014)

The Indiana Supreme Court has held that the State’s Juvenile Mental Health Statute, Ind. Code § 31-23-2-2.5(b), that bars a minor’s statement to a mental health evaluator from being admitted into evidence to prove delinquency conveys both use and derivative use immunity to a minor in a later delinquency proceeding based on new charges. To hold otherwise, the Court held, would violate the youth’s Fifth Amendment privilege against self-incrimination.

I.T., a minor, admitted to felony child molesting that would have been a felony if he had been an adult. As a condition of probation, I.T. was ordered to undergo treatment for juveniles with sexual behavior problems, including polygraph examinations. During one of the exams, I.T. admitted to molesting two other children. As a result, I.T. was removed from his home and placed in juvenile detention, and then moved to a residential treatment program, the Sexually Traumatized Adolescents in Residential Treatment (START) program. The Department of Child Services and the police also investigated the minor’s admissions and interviewed one of the victims and I.T. The State then filed a new delinquency petition based on I.T.’s statements to his therapist. Under Indiana law, the juvenile court must approve the filing of a new petition. It initially did so, but I.T. moved to dismiss the petition on the grounds that the Juvenile Mental Health Statute barred the State’s evidence. The trial court agreed finding that absent the minor’s statements to the evaluator, it could find no other evidence to support a probable cause finding to support the petition. The court then gave the State ten days to file a new petition based upon independently obtained evidence, but the State instead appealed to the Court of Appeals.

The Court of Appeals found that the State has no authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition under state law and dismissed the appeal. The State then appealed to the Indiana Supreme Court and that Court granted certiorari and reviewed the case. The Supreme Court found that the trial court’s order withdrawing its approval of the filing of the petition was essentially an order suppressing evidence. When the ultimate effect of a trial court’s order is to preclude further prosecution, the Court held, the State may appeal that order even though there was no statute authorizing appeal in this situation.

On the merits, the State argued that the Juvenile Mental Health Statute prevents it from using I.T.’s actual statements at trial, but does not prevent it from using his statements to develop other evidence. The State conceded that it had no other evidence than that derived from the youth’s statements. Under this argument, the Statute would provide “use immunity” under the Fifth Amendment, but not “derivative use” immunity, meaning the State could use the statement to pursue and develop other evidence to prosecute the juvenile. The Supreme Court disagreed finding that the plain language of the statute conveys “use immunity” except in limited situations, such as a probation revocation hearing, a modification of disposition proceeding or a proceeding in which the juvenile raises the insanity defense. The Court then went on to find that “use immunity” alone cannot protect an individual’s Fifth Amendment right against selfincrimination unless it also conveys “derivative use” immunity. Otherwise investigators could still use compelled testimony to search out other evidence against the individual. The Court noted that the trial court had ordered I.T. into treatment as a condition of his probation and his remaining silent during that therapy could be found to violate his probation due to his failure to participate. To permit the filing of a new petition based upon compulsory participation in a therapeutic polygraph examination without any independent evidence to prove the violations would therefore run afoul of his constitutional privilege against self-incrimination.

The conveyance of derivative use immunity, the Court held, is also consistent with the purposes of the juvenile code. In enacting the Juvenile Mental Health Statute, the legislature found that well over half of minors detained had mental health or substance abuse problems. The legislative history also revealed that encouraging research-based programs can reduce recidivism and future involvement in the juvenile justice system, but that without open and honest communications between treatment providers and patients, the rehabilitative process would fail. The Court found that, as a result, the Statute must prevent the use of information obtained through the treatment process, including therapeutic polygraph examinations. The Supreme Court therefore held that a juvenile’s compelled statements cannot be used against him even in a probable cause affidavit and dismissed the State’s appeal.

Found in DMHL Volume 33 Issue 2

Involuntary commitment (Alabama)

Hospital mental health professionals have sovereign immunity protection for decision-making regarding discharge of involuntarily committed patients, provided that required procedures regarding such discharge are followed

Ex parte Kozlovski, No. 1140317, 2015 WL 1877656 (Ala. Apr. 24, 2015) (not yet released for publication)

Jeffrey Brown, a 19-year-old man with a long history of mental illness as well as chronic runaway behaviors and periodic violent outbursts, was involuntarily committed to an Alabama psychiatric hospital after physically attacking his father. After a course of treatment at the hospital, the treatment team, led by Dr. Kozlovski, found Mr. Brown met the criteria for discharge and return to the community, and arranged for his placement in a group home, against the wishes of family members who feared the consequences of his runaway behaviors. Within a day of his admission to the group home, Mr. Brown ran away from the group home. He was found dead three days later, apparently struck and killed by a motor vehicle. Mr. Brown’s estate filed a wrongful death action against the hospital and Dr. Kozlovski. After discovery, Dr. Kozlovski filed a motion for summary judgment based on “State agent immunity,” but the trial court denied the motion. Following that denial, Dr. Kozlovski appealed to the Supreme Court of Alabama and requested a writ of mandamus requiring the trial court to grant the summary judgment motion.

The Supreme Court of Alabama granted the writ, holding that the psychiatrist was discharging duties imposed by state statute, rules, and regulations, and so was entitled to state agent immunity. The Court also noted that, although the State agent asserting immunity bears the initial burden of demonstration that the plaintiff’s claims arise from actions that would normally entitle the agent to immunity, that burden shifts to the plaintiff to show that an exception to state-agent immunity is applicable.

Found in DMHL Volume 34 Issue 2

Police search and seizure and qualified immunity in mental health emergencies

7 th Circuit reverses district court and dismisses 42 U.S.C. § 1983 claim against police officers for violating plaintiff’s fourth amendment right against unreasonable seizure, finding the officers had qualified immunity

Mucha v. Jackson, 786 F.3d 1064 (7th Cir. 2015)

Jason Mucha was a Milwaukee police sergeant referred for psychiatric examination after failing to report to duty for 7 months due to stress. In his examination, Mucha admitted to having had thoughts of committing suicide by cop, specifically “going to a command staff meeting with a rifle” and “shooting them until they shoot me.” Mucha stated that he did “not intend[] to do that” but that going back to work “could have a real bad ending.” The psychiatrist, in a report to the police department two weeks later, stated that sending Mucha back to work would be a “public safety issue.” The police sent two officers with Tactical Enforcement Unit backup to Mucha’s home to speak with him. At that time Mucha said he had no intention of harming himself or others, but he did admit to having dreams or thoughts of committing suicide or hurting others. The officers detained Mucha and took him to the Milwaukee County Mental Health Facility where he was admitted after the facility’s treatment director found that Mucha suffered from “adjustment disorder with disturbance of conduct and mood” and so “posed a threat of danger to self or others.” Mucha was released after three days and filed suit for unreasonable seizure and false imprisonment. The District Court for the Eastern District of Wisconsin denied the officers’ motion for judgment on the pleadings with respect to their claims for qualified immunity.

The Seventh Circuit Court of Appeals reversed, holding that the officers were entitled to qualified immunity, as they had not violated “any clearly established law, whether constitutional or statutory, federal or state.” Judge Posner noted that the officers had relied upon Wisconsin's emergency detention statute, which authorizes police officers to take a person to an appropriate mental health facility if they have “cause to believe” that the person is “mentally ill” and has demonstrated “a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” The district court had accepted Mucha’s Fourth Amendment argument that the officers did not “have probable cause to believe that he was mentally ill and posed a danger to himself and to other police officers.” The district court noted that the psychiatrist’s information was 15 days old when received, and thus was not “recent” within the meaning of the emergency detention statute. The Seventh Circuit rejected Mucha’s argument, however, noting that the Wisconsin statute does not define “recent” and that the definition can vary depending upon context. Given the nature of Mucha’s statements to the psychiatrist, the Circuit Court held that the statements were still recent or at least not clearly established as no longer recent. Moreover, the Circuit Court noted that “[a] state law cannot preempt the Fourth Amendment” but it “can establish a standard of conduct that is consistent with the amendment but particularized to a specific situation.” Because the “danger signals” known to the police at the time of their interview with Mucha reasonably triggered the emergency detention statute, “the defendant officers…were complying with a statute the validity of which is not contested.”

Found in DMHL Volume 34 Issue 2

Corrections

Because no Supreme Court precedent established a right to suicide prevention protocols, corrections officials were entitled to qualified immunity in case involving claim that inmate suicide arose from facility’s violation of inmate’s Eighth Amendment right to appropriate suicide screening, treatment and monitoring

Taylor v. Barkes, 135 S.Ct. 2042 (2015) (per curiam)

Christopher Barkes was arrested in 2004 for violating probation and was taken to a Department of Corrections (DOC) facility in Wilmington, Delaware, where he underwent a suicide screening based on a model form developed by the National Commission on Correctional Health Care (NCCHC) in 1997 as part of intake procedures. The intake was completed by a nurse from the contractor employed by the facility (First Correctional Medical, Inc. [FCM]). Barkes stated that he had attempted suicide in 2003 and disclosed that he had a history of psychiatric treatment, but said that he was not currently contemplating suicide. The nurse gave Barkes a routine referral to mental health services and did not initiate any special suicide prevention measures. Barkes was placed in a cell by himself. He placed a call to his wife that evening and expressed his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed at 10:45, 10;50, and 11:00 am. At 11:35 am, an officer delivered lunch to the cell and discovered that Barkes had hanged himself with a bedsheet.

The Third Circuit held that Barkes’s constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide. It also held that summary judgment was inappropriate given evidence that “FCM’s policies and procedures…created an unreasonable risk of a constitutional deprivation” and evidence of DOC’s awareness of FCM’s non-compliance with NCCHC standards. Finally, it held that a reasonable jury could have found that Barkes’s suicide was caused by the DOC’s failure to supervise FCM despite the fact that Barkes did not self-report suicidal ideation or exhibit suicidal behavior. In the court’s view, “had Appellants properly supervised FCM and ensured compliance with the national standards, Barkes’s answers during his screening would have resulted in additional preventive measures being taken.”

The Supreme Court reversed per curiam, holding that the right “to proper implementation of adequate suicide prevention protocols” was not clearly established “in a way that placed beyond debate the unconstitutionality of the [facility’s] procedures.” Although the Third Circuit found the right established by its own precedents, the Court emphasized that no Supreme Court decisions have established a right to proper implementation of adequate suicide prevention protocols or discussed suicide screening protocols. Thus, the defendants were entitled to qualified immunity because they were not “contravening clearly established law,” even if the suicide screening and prevention measures had shortcomings.

Found in DMHL Volume 34 Issue 2

Cruel and unusual punishment

Cox v. Glanz, No. 14-5022, 2015 WL 5210607 (10th Cir. Sept. 8, 2015)

Claim by surviving family member that inmate’s suicide was result of deliberate indifference by jail staff survives motion for summary judgment in claim against sheriff in his official capacity, but summary judgment is granted to sheriff on claim against him in his individual capacity due to qualified immunity

Background: Charles Jernegan surrendered to the Tulsa, Oklahoma jail in response to a warrant for his arrest. His intake screening included a mental health and suicide questionnaire. Jernegan reported that he was taking medication for paranoid schizophrenia, and he answered “yes” to questions asking about experience of paranoia and experience of nervousness or depression. Jail protocols called for a person with such responses being directly referred to mental health staff, but no such referral was made. Jernegan did deny to jail staff and a screening nurse that he had any suicidal thoughts. Jernegan later made a request to “talk” with jail mental health staff about unspecified “problems,” but the responding staff person reported that when she went to see Jernegan he had been moved to another cell. The staff person had not followed up on this or seen Jernegan when, two days later, Jernegan committed suicide by hanging himself with a sheet. Jernegan’s mother brought § 1983 action against the county sheriff, in both his personal and official capacity, alleging that the jail’s “deliberate indifference” to her son’s mental health needs constituted cruel and unusual punishment in violation of the 8th amendment. The district court denied the sheriff's motion for summary judgment, on the grounds that there were facts in controversy in the matter that were determinative of the issue of the sheriff’s liability. The sheriff filed an interlocutory appeal.

Holdings: Qualified immunity for individual liability granted and claim dismissed: A 3-judge panel found that at the time of Jernegan’s suicide in 2009, there was no “clearly established” law that would have put the sheriff on notice that his conduct constituted “deliberate indifference” to Jernegan’s mental condition in the jail in violation of the 8 th amendment. The Court found that the then-existing law required a threshold finding that the sheriff had personal knowledge that Mr. Jernegan “presented a substantial risk of suicide” before liability could attach. Summary judgment motion for official capacity liability claim denied: The sheriff argued that “official capacity” liability requires proof of a policy, pattern or practice that resulted in the alleged constitutional violation, and that the record did not support a finding of any such policy, pattern or practice in this case. The panel responded that, although denial of a claim of qualified immunity is a final action that can be heard and reviewed on interlocutory appeal, the denial of a motion for summary judgment that is unrelated to a denial of qualified immunity is not a final action and therefore cannot (except in rare instances) be heard and reviewed on interlocutory appeal.

Notable Points: The panel’s decision is notable for its review of federal case law relating to jail operations that would put jail officials on notice as to what conduct constitutes such “deliberate indifference” to an inmate’s condition that it amounts to “cruel and unusual punishment” in violation of the 8 th amendment. That review included mention of the U.S. Supreme Court’s recent decision in Taylor v. Barkes, --- U.S. ----, 135 S. Ct. 2042 (2015) (per curiam), where the Court found that, as of November 2004, there was no clearly established "right" of an inmate to be adequately screened for suicide.

Found in DMHL Volume 34 Issue 3