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

Eighth Amendment violations due to inhumane prison conditions and lack of treatment; inmate suicide

Palakovic v. Wetzel, 854 F.3d 209 (3rd Cir. 2017)

Third Circuit reverses the trial court’s grant of defendants’ motions to dismiss claims brought by estate of inmate who committed suicide in prison, holding that the district court erred by (1) improperly applying the guidelines for determining the liability of facility staff for an inmate’s suicide, and (2) improperly denying claims that the prison was liable for subjecting the inmate to inhumane conditions and being deliberately indifferent to his documented mental illness, separate and apart from his suicide.

Found in DMHL Volume 36, Issue 2

Ruling that Civil Rights Claim Can Be Pursued Against Police Officer for Failure to Inform Jail Officials Inmate on Verge of Attempti ng Suicide Not Disturbed

Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003), cert. denied, Shepard v. Cavalieri, 124 S. Ct. 531 (2003)

The Supreme Court declined to review a ruling of the Seventh Circuit that the mother of a jail inmate was entitled to pursue a civil rights claim against a police officer for his alleged failure to inform jail officials that her son was on the verge of trying to commit suicide.  The Seventh Circuit rejected the officer's argument that his duty to inform ended when the pretrial detainee was transferred from municipal to county custody....

Found in DMHL Volume 23 Issue 1

Sufficient Facts Alleged Regarding Suicide of Detainee to Permit "Deliberate Indifference" Lawsuit Targeting Jail Staff to Continue

Short v. McEathron, No. Civ.A.5:04 CV 00043, 2004 WL 2475561 (W.D. Va. 2004)

Suicides and suicide attempts by jail and prison inmates with a mental disorder are unfortunately not a rare event.  Following an inmate suicide, a lawsuit may be filed that asserts that correctional officials did not take adequate steps to prevent the suicide.  The United States Supreme Court in Farmer v. Brennan, 511 U.S. 825, 848 (1994), established that a prison official may be held liable under federal law if the official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."  Such a complaint is widely referred to as a "deliberate indifference" claim...

Found in DMHL Volume 24 Issue 1

Hospital and Physician Liable Under EMTALA for Transferring Suicidal and Intoxicated Patient to Jail for Protective Custody

Carlisle v. Frisbie Mem'I Hosp., 888 A.2d 405 (N.H. 2005)

A recently completed national survey of hospitals found that 55% of all hospital admissions  (excluding  pregnancy  and childbirth)  in 2003 entered the hospital  through the hospital's emergency  department, a total of 16 million patients.  The fifth most­ often given reason for admission was mental health and substance abuse disorders  (5.8% or nearly 1,000,000 patients, with 387,500 patients admitted for the treatment of mood disorders).   Anne Elixhauser & Pamela Owens, Reasons for Being Admitted to the Hospital  Through the Emergency  Department, 2003, Healthcare Cost and Utilization Project (H·CUP) (Feb. 2006), http://www.hcup­ us.ahrq.gov/reports/statbriefs.jsp...

Found in DMHL Volume 25 Issue 2

Police Officer Must Have Probable Cause to Handcuff Man Reported to Be Suicidal; Ruling Not Disturbed

Fisher v. Harden, 398 F.3d 837 (6th Cir. 2005), cert. denied, 126 S. Ct. 828 (2005)

When a dispatcher relays to a police officer a call for assistance, the information provided may include a "mental health code" designed to alert the responding officer that mental illness may play a role in the encounter.  In a case from Ohio, two sheriff's deputies were told incorrectly that a man had his feet tied to a set of railroad tracks and they were dispatched pursuant to a "Code 58," which indicates a possible suicide.  In actuality, a seventy-seven-year-old  retired farmer had gone out to shoot groundhogs in a rural farming area, an activity in which he routinely engaged to help protect his neighbor's crops. The man had taken with him a folding chair, his rifle, and a tripod to steady his rifle, and positioned himself upon an elevated railroad grade on a neighbor's property roughly 250 yards from a rural road.  A passerby had seen him and telephoned the Sheriff's Department. The responding deputies found the man seated in his folding chair.  From the road, they used the speaker system in their cruiser to instruct the man to come toward them.  The man stood up, gathered his belongings, and began walking along the railroad tracks towards the officers...

Found in DMHL Volume 25 Issue 2

U.S. Attorney General's Effort to Block Oregon's Assisted Suicide Law Through Physician Registration Requirements Struck Down as Exceeding His Authority

Gonzalez v. Oregon, 126 S. Ct. 904 (2006)

Physician-assisted suicide was authorized in Oregon in 1994 following a state-wide voter referendum, and reaffirmed following a second referendum in 1997. The Oregon Death with Dignity Act permits an individual who has been diagnosed with a terminal illness that will lead to death in six months to obtain from a willing physician a prescription for a medication that will hasten death, although the individual must self-administer the medication...

Found in DMHL Volume 25 Issue 2

Tennessee Dismisses EMTALA Complaint in Suicide Case

Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010)

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law.

Found in DMHL Volume 30 Issue 2

Treatment of Mentally Ill Individuals in Custodial Settings: Eighth Amendment

Failure to follow national suicide screening prevention standards with prisoner who later commits suicide presents colorable eighth amendment claim that survives summary judgment motion

Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014)

After Christopher Barkes committed suicide while being held at a correctional facility in Delaware, his wife and children brought a § 1983 suit against the commissioner of the state department of corrections (“DOC”), the warden, and the private company with whom the DOC contracted to provided medical services to the prison (“FCM”) alleging violations of the Eighth Amendment of the federal Constitution.

When Barkes was arrested in November, 2004, he underwent a medical intake screening procedure conducted by a licensed nurse employed by LCM, the private contractor hired to provide medical services to the prison. The procedure involved (1) a self-report intake form that included questions about suicidal ideation, (2) screening for seventeen suicide risk factors, and (3) a standard medical intake form with questions about “altered mental status ... or abnormal conduct.” Barkes indicated that he had attempted suicide in 2003, but made no mention of three other attempts (one in 1997 and two in 2004) and checked only two of the seventeen suicide screening factors (eight were required to initiate suicide prevention measures). Finally, the licensed practical nurse who conducted the evaluation reported that Barkes showed no signs of either altered mental status or abnormal conduct. Barkes did, however, place a call to his wife that evening and express his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed in his cell at 10:45, 10:50, and 11:00 a.m. When an officer came to deliver his lunch at 11:35 a.m., Barkes had hanged himself with a bed sheet.

The Third Circuit held (1) for purposes of determining whether the warden and DOC commissioner were entitled to qualified immunity, Barkes’ constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide; (2) that summary judgment was inappropriate given evidence that “FCM's policies and procedures in place at the time of Barkes's suicide created an unreasonable risk of a constitutional deprivation;” and (3) that a reasonable jury could have found that Barkes’ suicide was caused by the DOC’s failure to supervise FCM. The second holding was based on evidence of the DOC’s awareness that “FCM's suicide prevention screening practices were not in compliance with [National Commission on Correctional Health Care] standards, as required by their contract with the DOC.” The Third Circuit reached its third holding despite the fact that Barkes did not self-report any suicidal ideation or exhibit any suicidal behavior because, in the court’s view, “had Appellants properly supervised FCM and ensured compliance with the contract, Barkes's answers during his screening would have resulted in additional preventive measures being taken.”

Found in DMHL Volume 34 Issue 1


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

Psychiatric Hospital Liability in Patient’s Suicide

P.W. v. Children's Hosp. Colorado, 364 P.3d 891 (Co. 2016)

Hospital’s affirmative defenses of comparative negligence and assumption of risk in the case of a minor admitted to the psychiatric hospital as a “known suicidal patient” rejected based on finding that the hospital’s “professional duty of care encompasses, and is shaped by, the plaintiff-patient’s medical condition” as it is known to the hospital.

Background: P.W. sued Children’s Hospital Colorado (“the Hospital”) for negligence when his son, K.W., attempted to kill himself by hanging while at the Hospital. When K.W. was first transferred to the psychiatric unit, notes stated that he was admitted for treatment of depression and suicidal ideation—specifically mentioning cutting and hanging—and was placed on “high suicide precautions.” These precautions included the requirement that patients remain in staff sight at all times except for when using the bathroom. When in the bathroom, however, staff should communicate with the patient every 30 seconds. K.W. was allowed use of the bathroom at 9:55 p.m., and at 10:15 p.m., he was discovered to have hanged himself with his scrub pants. K.W. was diagnosed with severe, permanent anoxic brain injury and not expected to recover. P.W., K.W.’s father, sued the Hospital individually and on behalf of his son for negligence, and the Hospital asserted affirmative defenses of comparative negligence and assumption of risk. P.W. moved to dismiss the defenses, and, treating the motion as one for summary judgment, the district court granted the motion. Holding: The Supreme Court of Colorado affirmed, holding that the Hospital could not assert either a comparative negligence or assumption of risk defense as a matter of law. Although the Hospital had also petitioned for an order to gain access to K.W.’s preincident mental health records, the Supreme Court did not address the trial court’s discovery order. 

Notable Points:

The Hospital assumed an affirmative duty to protect K.W. from self-harm: When admitting a suicidal patient to a psychiatric in-patient unit, a hospital assumes an affirmative duty of care, which subsumes a patient’s own duty of self-care. Thus, a patient cannot be found comparatively negligent for a suicide attempt. In this case specifically, the Hospital agreed to use reasonable care to prevent a known suicidal patient from attempting to commit suicide. That duty cannot be overcome by a comparative negligence or assumption of the risk defense.

A capacity-based theory of comparative negligence does not apply: A hospital’s duty of care encompasses a patient’s individual characteristics—including known medical conditions—and the duty of care can be continually shaped by those characteristics. As such, the capacity for negligence of a sixteen-year-old patient, known to be suicidal, was not relevant to determining whether he could be held comparatively at fault for injuries sustained in a suicide attempt. While in the Hospital’s care, the hospital had a duty to protect him from foreseeable harm, and when he was known to be suicidal at intake, that foreseeable harm included harm from a possible suicide attempt.

Found in Found in DMHL Volume 35, Issue 1

Firearms Possession by Persons with Mental Illness; Negligent Entrustment

Delana v. CED Sales, Inc., No. SC95013, 486 S.W.3d 316 (Mo. 2016) (en banc)

Missouri Supreme Court rules that a claim of negligent entrustment can be brought against a seller who sold a firearm to an individual after the seller had been specifically informed that the purchaser was mentally ill and had attempted suicide recently and was likely to do harm to self or others if given possession of a firearm, where the purchaser did subsequently use the firearm to kill another person.

Background: On June 25, 2012, Colby Weathers’ mother called the store manager of Odessa Gun & Pawn and asked him to refrain from selling a gun to her daughter who was severely mentally ill, informing him that Ms. Weathers had purchased a gun at the pawnshop the previous month and attempted to commit suicide. Two days later, the store manager sold a gun to Weathers and within two hours, Weathers had shot and killed her father. The State charged Weathers with murder but accepted her plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Weathers’ mother filed a wrongful death action alleging that the pawnshop was liable under theories of negligence.

The circuit court entered summary judgment in favor of Respondents, finding that Weathers’ mother’s negligence claims were preempted by the Protection of Lawful Commerce in Arms Act (PLCAA), which protects the sellers of firearms against negligence claims. The court also determined that although the PLCAA provides an exception to this protection in cases of negligent entrustment, Missouri law does not recognize a cause of action for negligent entrustment against sellers.

Holding: On appeal, the Supreme Court of Missouri held that the district court erred in determining that Weathers’ mother was precluded from proceeding with her negligent entrustment claim. The court found that, because Congress had expressly and unambiguously exercised its constitutionally delegated authority to preempt state law negligence actions against sellers of firearms, the PLCAA clearly preempted state law on point; thus, the PLCAA’s exception for negligent entrustment actions applied. What is more, the Court found that Missouri law does recognize a cause of action for negligent entrustment. The court concluded that negligent entrustment occurs when the defendant "supplies" a chattel (i.e., item of personal property) to another with actual or constructive knowledge that, "because of youth, inexperience or otherwise," the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm. Because Weathers’ mother presented sufficient evidence, the circuit court erred in entering summary judgment in favor of the pawnshop.

Found in DMHL Volume 35, Issue 2

Provider Liability

Binkley v. Allina Health Sys., 877 N.W.2d 547 (Minn. 2016)

In a case involving a minor with history of suicidal behavior, hospital’s affirmative defense of statutory immunity applied to the decision to deny admission to an inpatient mental health unit, but not to decisions regarding what care to provide the patient after leaving the hospital. 

Background: Binkley sued Allina Health System (“Allina”) for negligence in failing to properly examine, evaluate, and provide services to her son, Lloyd, who committed suicide after being denied admission into an inpatient mental health unit. In 2009, Lloyd began to experience suicidal thoughts and ideation, which resulted in his participation in the “United Partial Program” (“partial program”), an outpatient mental health treatment program. About nine months after completing the program, Lloyd again experienced suicidal ideation and self-harm behavior. He told his mother that he wanted to go to United in order to get help and stop his pattern of self-harm. Binkley and Lloyd went to the United Health emergency room and repeatedly requested that Lloyd, who consented, be admitted to United's inpatient mental health unit. Lloyd was examined by United staff, but was informed that he would not be admitted to the inpatient unit and, further, he was not “a good candidate” for the outpatient program because of a previous failure to follow through with that program. Lloyd returned home with his mother and committed suicide less than 24 hours later. Respondents asserted an affirmative defense of statutory immunity and, in the alternative, claimed that Binkley's expert affidavit failed to satisfy the statutory requirements under Minnesota law. The district court denied the motion for summary judgment.

Holding: On appeal, the Minnesota Supreme Court held that Respondents' good-faith decision to deny Lloyd admission to the inpatient mental health unit was entitled to immunity. However, the court also held that decisions regarding what care to provide to Lloyd after he left the hospital were not entitled to immunity.

Notable Points:

The immunity provision of the Minnesota Commitment and Treatment Act (“CTA”) applies to both voluntary and involuntary commitments: The CTA creates a state policy in favor of voluntary treatment. The voluntary treatment section of the CTA, which applied to Lloyd's circumstances, prohibits the arbitrary denial of admission and requires that treatment facilities use “clinical admission criteria consistent with the current applicable inpatient admission standards established by the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry” when “making decisions regarding admissions.”

Found in DMHL Volume 35, Issue 2

Provider Liability and Duty of Care in Outpatient Mental Health Setting

Chirillo v. Granicz, 41 Fla. L. Weekly 345 (2016)

In medical malpractice suit against psychiatrist for suicide of patient, Supreme Court of Florida rules that while there is no provider duty to prevent suicide in the outpatient setting, there is still a duty of care owed to the patient and the case presented a genuine issue of material fact as to whether that duty was breached.

Background: Robert Granicz filed a medical malpractice case against his deceased wife’s primary care physician, Dr. Joseph Chirillo, alleging he breached his duty of care in treating her, which resulted in her suicide. The decedent had a history of depression and began seeing Dr. Chirillo, who changed her medication from Prozac to Effexor. Following that change the decendant called Dr. Chirillo’s office and told his medical assistant that she had stopped taking the Effexor because of side effects and that she had not felt right for the past few months. This information was given to Dr. Chirillo, who changed the decedent’s prescription to Lexapro. Dr. Chirillo’s office called the decedent and told her to pick up her new prescription, but did not request that she schedule an appointment with Dr. Chirillo. The decedent picked up her prescription later that same day, but Granicz found her body hanging in their garage the next day. Dr. Chirillo filed a motion for summary judgment claiming that he owed no duty to prevent a patient’s unforeseeable suicide while the patient was not in his control. The trial court granted the motion, but the Second District reversed on appeal.

Holding: The Supreme Court of Florida affirmed the decision of the Second District and held that the plaintiff showed a genuine issue of material fact regarding the proximate cause of his wife’s suicide. The court remanded the case for trial.

Notable Point:

First District Case: The Florida Supreme Court explicitly disapproved the analysis regarding duty used by the First District in Lawlor v. Orlando, 795 So. 2d 147 (Fla. Dist. Ct. App. 2001).

Found in DMHL Volume 35, Issue 3