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Harrelson v. Dupnik

United States District Court, D. Arizona

July 18, 2013

Jacquelyn Harrelson, individually and on behalf of the statutory beneficiaries of M.J.H. and Estate of M.J.H., Plaintiff,
Clarence W. Dupnik, Sheriff of Pima County; et al., Defendants

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For Jacquelyn Harrelson, Individually and Statutory Beneficiaries on behalf of M.J.H., estate of M.J.H., Plaintiff: Anne E Findling, Joel B Robbins, Robbins & Curtin PLLC, Phoenix, AZ.

For Clarence W Dupnik, Sheriff of Pima County, Pima, County of, a Political Subdivision of the State of Arizona, Defendants: Denise Hilda Laura Troy, Dickinson Wright/Mariscal Weeks, Phoenix, AZ; Nancy Jane Davis, Pima County Attorneys Office, Tucson, AZ; Timothy J Thomason, Mariscal Weeks McIntyre & Friedlander PA, Phoenix, AZ.

For ConMed Healthcare Management Incorporated, a Foreign Corporation, ConMed Incorporated, an Arizona Corporation doing business as ConMed Healthcare Management Incorporated, Defendants: Denise Hilda Laura Troy, Dickinson Wright/Mariscal Weeks, Phoenix, AZ; Timothy J Thomason, Mariscal Weeks McIntyre & Friedlander PA, Phoenix, AZ.

For Steven R Galper, MD, Roger Bishop, MD, Karen Yashar, RN, K Richey, RN, Defendants: Denise Hilda Laura Troy, LEAD ATTORNEY, Dickinson Wright/Mariscal Weeks, Phoenix, AZ.


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Héctor C. Estrada, United States Magistrate Judge.

Pending before the Court are: (1) the Defendants Clarence Dupnik and Pima County's (hereinafter " County Defendants" ) Motion for Summary Judgment (Doc. 100) (hereinafter " MSJ" ) and (2) Defendants Conmed Healthcare Management Inc., and Conmed Inc.'s (hereinafter " Conmed Defendants" [1]) and Defendants Steven R. Galper, M.D., Roger Bishop, M.D., Karen Yashar, R.N., and K. Richey, RN.'s (hereinafter " Individual Conmed Defendants" ) [2] Motion for Partial Summary Judgment (Doc. 105) (hereinafter " MPSJ" ). The motions came on for oral argument on June 19, 2013.

Pursuant to the Rules of Practice of this Court, this matter was referred to undersigned for a Report and Recommendation. (Doc. 10).

For reasons stated herein, the Magistrate Judge recommends that (1) Defendant K. Richey be dismissed from this action; (2) the Pima County Defendants' MSJ be granted in part and denied in part and (3) the Conmed and Employee Defendants' MPSJ be granted in part and denied in part.

I. Factual and Procedural Background

This case arises from the death of M.J.H., a 17 year old juvenile remanded to the custody of Defendant Dupnik in the juvenile housing unit at the Pima County Adult Detention Complex (hereinafter " PCADC" ). Plaintiff Jacquelyn Harrelson, (hereinafter " Plaintiff" ) individually and on behalf of the statutory beneficiaries of M.J.H., and Estate of M.J.H., filed an Amended Complaint in state court which Defendants removed to this Court. (Doc. 1). Plaintiff filed a SAC naming the following Defendants: (1) Clarence W. Dupnik, Sheriff of Pima County; (2) Pima County, a political subdivision of the State of Arizona; (3) Conmed Healthcare Management, Inc.; (4) Conmed, Inc., doing business as Conmed Healthcare Management; (5) Steven R. Galper, M.D.; (6) Roger R. Bishop, M.D.; (7) Karen Yashar, R.N.; and (8) K. Richey, R.N. (Doc. 39). Plaintiff alleges five counts in her SAC: Count One alleges that the Pima County Defendants committed negligence and/or gross negligence for breach of duty to provide care, custody and control regarding M.J.H.'s incarceration at the Pima County Jail; Count Two alleges that the Conmed Defendants committed negligence and/or gross negligence; Count Three alleges that all Defendants committed wrongful death pursuant to A.R.S. § 12-611, et. seq. ; Count Four alleges, pursuant to 42 U.S.C. § 1983, that Defendant Dupnik in his role as official policy maker for the PCADC, used isolation in violation of the Eighth Amendment proscription against cruel and unusual punishment and in violation of the Fourteenth Amendment's guarantee of due process of law [3];

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and Count Five alleges, pursuant to 42 U.S.C. § 1983, that Conmed and Employees were deliberately indifferent to M.J.H.'s serious medical needs, in violation of the Eighth Amendment.

Defendant Conmed Healthcare Management has contracted with Pima County to provide medical and mental health care at PCADC. (Plaintiff's Separate Statement of Facts (Doc 116, pp. 40-76) (hereinafter " PSSOF" ) ¶ 9; see also id. at ¶ ¶ 29-30). Defendant Conmed employs the following Defendants: Dr. Bishop, who completed his residency in family practice and was Conmed's Medical Director in 2010; Dr. Galper, who completed a residency in neurology and psychiatry [4]; and Karen Yashar, who is an R.N. with a bachelor's degree in nursing. (Conmed and Employee Defendants' Statement of Facts (Doc. 106) (hereinafter " CESOF" ) ¶ ¶ 1-2, 4, 7, 9-10). At all relevant times, the medical and mental health care of inmates housed at PCADC was provided by Conmed and its employees. (County Defendants' Statement of Facts (Doc. 102) (hereinafter " CDSOF" ), ¶ 3).

On April 1, 2010, M.J.H. was booked into PCADC and housed in the juvenile pod with instructions to keep him separate from another inmate, " C.N." (PSSOF, ¶ 63). On April 20, 2010, C.N. assaulted M.J.H. after a corrections officer " failed to notice the keep-separate order" and C.N. and M.J.H. were together in the recreation yard at the same time. (CDSOF, Declaration of Lt. Meister, ¶ ¶ 17, 20). On April 22, 2010, after deciding to press charges against C.N., M.J.H. reported that he feared for his safety and was afraid he would get " jumped" while in the dayroom and as a result, he was placed on protective custody status, also known as Administrative Segregation or ASI (" ASI" ), because " PCADC policies and procedures provide that juvenile inmates are to be placed on protective custody ... status ...where a juvenile reports threats of physical harm from other inmates." ( Id. at ¶ ¶ 10, 22, 23, 24; see also PSSOF, ¶ 70 & PSSOF, Exh. 1, p. IR75). A juvenile on ASI participates in school, the Level Advancement Program, and receives mail, television, dayroom, outdoor recreation, phone calls, visitation, and commissary privileges. ( Id. at ¶ ¶ 12-13).

At intake at PCADC on April 1, 2010, M.J.H. had reported that he: had been diagnosed as bipolar and with depression a year and one-half prior while in a detention facility in California; had taken Depakote in the past for bipolar disorder; and had attempted suicide four years prior. (CESOF, Exh. 9, pp. 53, 231-234). On April 2, 2010, M.J.H. was seen by Jason Zantanos, mental health staff, who found that M.J.H. suffered from situational depression. (CESOF, ¶ 25). On April 7, 2010, in response to M.J.H.'s request for sleeping medication, PA Barry McMillon [5] saw M.J.H., assessed " poor sleep", and prescribed Trazadone. (CESOF, Exh. 9,pp. 51, 229). On April 21, 2010, Licensed Associate Counselor (hereinafter " LAC" ) Raichelle Sutton saw M.J.H., although the reason for such appointment is unclear: the Conmed and Employee Defendants state it was for a sick call complaining of lack of sleep; Plaintiff states M.J.H. had complained about anxiety attacks, depression and insomnia. (CESOF, Exh. 9, p. 225 & Exh. 5, pp. 55-56, 58; PSSOF, Exh. 3, p.4209).

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LAC Sutton did not perform a full psychiatric assessment, diagnosed insomnia and referred M.J.H. to the prescriber who had previously prescribed Trazadone. (CESOF, Exh. 5, pp. 56, 58). During M.J.H.'s incarceration, he received Trazadone for either seven or ten days. (PSSOF, Exh. 13, p. 98).

On April 26, 2010, M.J.H. was seen by LAC Brent Gunderson. (CESOF, Exh. 8, pp. 6, 30, 39). LAC Gunderson testified that M.J.H. told him:

he had been seeing demons, then the demons had gone away. He saw spots on the wall where the demons' eyes had been before....[H]e was on PC status..., he spends roughly 23 hours a day locked away.
He acknowledged the stress that he feels. That's certainly something that he told me specifically. He was feeling as though he could go insane, he told me that. He said that he feels extremely lucky if he can fall asleep before breakfast, so all of that is what he told me. And that he was sleeping very little. He was experiencing some hallucinations because of lack of sleep.
* * *
Then he described a dream that he had where--the dream itself is where he had been seeing the demons....But then he said that he was still seeing spots on the walls even after the dream, after he woke up, where the demons' eyes were.

( Id. at pp. 39-40). According to LAC Gunderson, while M.J.H.'s statements could have indicated " some psychotic symptoms", post-traumatic stress disorder (hereinafter " PTSD" ), or acute stress syndrome, he believed that stress was the cause of M.J.H's distress. ( Id. at p. 48). M.J.H. requested a psychiatric evaluation. (CESOF, Exh. 9, p.217; PSSOF, Exh. 15, pp. 43-44). PCADC psychologist Andrew Stropko, Ph.D., agreed with LCA Gunderson's assessment, although psychosis, bipolar disorder and substance abuse were in the differential, sleep seemed to be the most important issue. (CESOF, ¶ 40). According to Dr. Stropko, the manner in which M.J.H. reported his dream and symptoms in terms of organization and thought process " mitigate[d] against psychosis at this point." (CESOF, Exh. 6, p. 42). Plaintiff's expert, Laura Don, a psychiatrist certified by the American Board of Psychiatry and Neurology disagrees, opining that by April 26, 2010, M.J.H.'s anxiety and depression had progressed to psychosis with visual hallucinations and paranoid delusions. (PSSOF, Exh. 3, pp. 4207, 4212).

On May 4, 2010, M.J.H.'s request to be removed from ASI status was denied. (PSSOF, Exh. 1, at p. IR81). On that same date, PA McMillon saw M.J.H. and arranged for correctional officers to observe M.J.H.'s sleep pattern for three days. (CESOF, ¶ ¶ 43, 44 & Exh. 9, p. 147). The observation was initiated but not completed. (CESOF, ¶ 45).

On May 6, 2010, Sergeant Ski requested " psych to see inmate as inmate is extremely agitated and has PTSD regarding an incident here [at] the jail...." (CESOF, Exh, 9, p. 215; see also PSSOF, Exh. 7, p. 34). Defense expert Jack Potts, M.D., testified that on May 6, 2010 M.J.H. claimed he had been on Depakote a year ago in California, and requested to have his mood stabilized and to have sleep medication. (PSSOF, Exh. 7, p. 34) The reporting R.N. indicated that M.J.H. stated he was " feeling very agitated [and] increasingly depressed [and] isolated," ( id. ), and assessed M.J.H. with PTSD, depression, and anxiety. ( Id. at pp. 215-16). A suicide watch was initiated. ( See id. at p. 209) A May 7, 2010 record indicates initiation of the five-minute suicide watch, because of " unpredictable, manic-behavior, increasing anxiety."

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(PSSOF, Exh. 1, p. IR83). NP Hogan checked on M.J.H. on May 7 and on May 9, 2010, and diagnosed M.J.H. with adjustment disorder with anxiety, but " stabilizing" after a good night's sleep in the infirmary as of May 9, 2010. (CESOF, Exh. 9, pp. 209, 211). She changed the suicide watch from five to fifteen minutes. ( Id. at p. 211). According to NP Hogan, her purpose in seeing M.J.H. during the five-minute suicide watch period was " [t]o evaluate him for a need for meds, as well as the suicide watch itself." (CESOF, Exh. 4, p. 67). Plaintiff disputes NP Hogan's testimony because no medication evaluation is documented in the medical record. (Plaintiff's Response to CESOF, ¶ 49). On May 11, 2010, LAC Gunderson found M.J.H. emotionally stable and released him from suicide watch. (CESOF, ¶ ¶ 53-55). On May 18, 2010, it was reported that M.J.H. was turning in his school work, and LAC Gunderson found M.J.H. did not present as suicidal, but rather appeared mentally and emotionally stable. (CESOF, ¶ 56; PSSOF, ¶ 81).

By May 24, 2010, LCSW Gafner noted that M.J.H. " reads Bible voraciously, fends off verbal barbs from other [inmate] who taunt him about [S]atan", and appeared " weary" and " pseudo-paranoid", but stable. (CESOF, Exh. 9, p. 197). By the evening of May 24, Zantanos, noted that M.J.H., who " reads his Bible voraciously...", reported that he had difficulty trusting other inmates and staff, and that another inmate is " being influenced by Satan and is influencing other..." inmates and correctional staff. (CESOF, Exh. 9, p. 195). Zantanos also noted that M.J.H. informed him that he was not " currently on psych meds and reports his mother does not want him on psych meds." ( Id. ). Zantanos " aided [M.J.H.] coping strategies and provided emotional support..." and planned to follow up the next day. ( Id. ). At 9:45 p.m., Zantanos saw M.J.H. after correctional staff reported that M.J.H. made statements that he planned to hang himself. ( Id. at p.196). Zantanos determined that M.J.H. was not suicidal, " but rather is desperate to be away from the perceived harassment and ridicule occurring on 1E." ( Id. ). Zantanos spoke to M.J.H. about a rehearing to move to 1F, which M.J.H. was eager to seek, but:

it was determined by custody that...[M.J.H.] should not be attempting to choose his housing....[Inmate] state[d]...that if he has to return to 1E he will attempt to hang himself....[Inmate] is quick to decompress [with] support, though initially presents w/ tearfulness and shaking body language reporting " I can't take it anymore. I can't stay in there. This is spiritual warfare!"

( Id. ). Zantanos determined that M.J.H. was not " psychotic but rather is experiencing a high degree of psychological distress." ( Id. ). M.J.H. was again moved to the infirmary and placed on five-minute suicide watch for ongoing support and status indications, and given access to a smock and blanket. ( Id. ; CESOF, ¶ 59; see also PSSOF, Exh. 1, p.IR 93). Defense expert, Dr. Potts, testified that he did not believe suicide watch was appropriate at this time because the record did not support the belief that M.J.H. was suicidal: " It appears to have been the only alternative available to the mental health folks, but that's speculative." (PSSOF, Exh. 7, pp. 43-44). Dr. Potts agreed that the conditions for suicide watch are harsh. ( Id. at p. 55).

Plaintiff's expert psychiatrist, Dr. Don, opines that brief periods of mood stabilization were documented (5/10, 5/12, and 5/18/10), however " by 5/24/10 he had deteriorated with clear psychotic and manic symptoms, including suspiciousness, hyperreligiosity (reading the Bible 'voraciously'), paranoid delusions with a belief

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that another inmate was influenced by Satan and that this inmate was trying to control the minds of other inmates and some officers. He was not on psychotropic medications and reported that his mother does not want him to take psychotropic medications [6].... [Jason Zantanos, MHP, Conmed Healthcare Management]" (PSSOF, Exh. 3, pp. 4211-12 (bracketed text in original)). Dr. Don also noted that " [a]nother therapist, also on 5/24/10, documented the paranoid delusions and noted that he had the suspiciousness of a patient who is paranoid and fearful, yet concluded that he was 'stable' and diagnosed him as being 'pseudo-paranoid.' [Administrative Segregation Screening George Gafner, LCSW]...." (PSSOF, Exh. 4, pp. 4212 (bracketed text in original)). According to Dr. Don, by May 24, M.J.H. " was floridly psychotic...." ( Id. at p. 4212). She states that " pseudo-paranoid" diagnosed by LCSW Gafner, " is not a conventionally recognized diagnosis, but is clearly an assessment created by the evaluator to suggest malingering. Mr. Harrelson's reported symptoms, increasingly disorganized thought processes, and his agitated and distressed state, in the context of his past diagnosis with bipolar disorder, provide no basis for a diagnosis of malingering." ( Id. ).

The morning of May 25, 2010 at 6:20 a.m., M.J.H. was banging on his cell window and refused to stop. (PSSOF, Exh. 1, p. IR95). At 7:44 a.m., NP Hogan noted M.J.H. was " immersed in a delusion of Satan's influence on the juvenile pod." (CESOF, Exh 9, p. 193). She further noted: " When I met w/ him he refused to speak, but stared with the evil eye look. After...[I] left...he began yelling, 'In the name of Jesus, stop,' etc." ( Id. ). Her assessment was that " [m]uch of his presentation seems behavioral, but it certainly smacks of early Bipolar ﺊ psychosis....Appears to sleep adequately, though he was yelling and banging a lot last...[night about] being put on s[uicide]/w[atch]. Unpredictable and potentially lethal thoughts. Need to keep safe." ( Id. ). She continued M.J.H. on five-minute suicide watch. ( Id ). At her deposition, NP Hogan testified that on May 25th she diagnosed M.J.H. with adjustment disorder with anxiety because he was new to the adult level jail setting. (CESOF, ¶ 67; CESOF, Exh. 4, pp. 63).

LAC Sutton wrote on May 25, 2010 at 9:15 a.m. that M.J.H. was " throwing water out of his cell and yelling about the devil and hearing things through the wall." (CESOF, Exh. 9, p.191). M.J.H. refused to speak to her and instead threw two cups of water at the cell door. ( Id ). When staff moved M.J.H. to another cell in the infirmary, he " continued with a religious rant and struggled with officials....[M.J.H.] was then put into a restraining chair." ( Id. ). LAC Sutton agreed with NP Hogan's earlier assessment that M.J.H.'s presentation " appears to be behavioral as evidenced by...[his] snickering when he believed no one could see his face. I[nmate] has a history of being unpredictable

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and impulsive [7]." ( Id. ). She continued him on five-minute suicide watch. ( Id. ). At noon, LAC Sutton attempted to speak with M.J.H. again. (CESOF, Exh. 9, p. 192). He was " much calmer..." but put his arm through the food trap twice. ( Id. ). He said that " 'we have no control' over him. He then began to talk to the voices telling them to leave him alone." ( Id. ). She ended the interview because M.J.H. was becoming more agitated. ( Id. ). At this point, " it was really hard to tell..." whether M.J.H's conduct was behavioral. (CESOF, Exh. 5, p. 72). At her 2012 deposition, LAC Sutton testified that she still believed her May 25, 2010 conclusion was correct:

Because at times it was difficult to make a distinction between what was real and what wasn't. And what I mean by that is at certain points it was difficult to determine what was being driven just by typical teenage acting out, or were they symptoms of what he had been diagnosed with, bipolar disorder, rule out psychosis.

( Id. at p. 62). Although some of M.J.H.'s actions on May 25 were consistent with psychosis and would be difficult to sustain over time if a patient was instead malingering, to LAC Sutton's knowledge, M.J.H. did not continue to decompensate but instead was lucid at times. ( Id. at p. 63).

On May 26, 2010, M.J.H. had a video visit with his father and other family members. (PSSOF, Exh. 1, p. H1623). Mr. Harrelson testified that although M.J.H. looked the same physically, " he said a lot of nonsensical things..." and Mr. Harrelson felt as if M.J.H. were speaking in code and was concerned his son was having mental issues. (PSSOF, Exh. 11, pp. 46-47). Upon seeing the video of the May 26th visit, defense expert Dr. Potts opined that M.J.H. " was psychotic." (PSSOF, Exh. 7, pp. 10-11). Dr. Potts believed that M.J.H. was exhibiting " some psychotic symptomatology prior to the video...visitation..." and that M.J.H.'s " behavior as seen in the latter part of May was significant enough to warrant psychiatric intervention in and of itself without the history." ( Id. at pp. 31-32). Dr. Potts did not believe that M.J.H. was malingering or feigning; instead, he " believe[s] he was psychotic." ( Id. at p. 95).

On May 26, 2010, M.J.H. remained on suicide watch. (CESOF, Exh. 9, p.192). LAC Sutton noted that M.J.H. stood at his window, began to constantly knock on the window, took off his smock, and refused food and drink. ( Id. ). She decided to follow up with a prescriber. ( Id. ).

On May 27, 2010 LAC Sutton reported that M.J.H., who remained on suicide watch: was rolling his feces in a ball and trying to push it under the cell door; smeared his food on windows spelling " help" backwards so it could be read by staff; urinated out the cell door; wore no clothing; refused food and drink; and did not respond to her. (CESOF, Exh. 9, p. 189). Her assessment was that M.J.H. " continues to behave in a bizarre manner and although it appears to be behavioral most of the time, at times it is difficult to judge." ( Id. at pp. 189-90). She noted that prescribers were attempting to get parental consent for medication. [8] ( Id. at

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p. 190). M.J.H. was noted to be combative, resistant to towards staff, spitting on them, and was placed in restraints. (PSSOF, Exh. 1, p. IR97).

On May 27, 2010, either a nurse or psychiatric provider asked Dr. Bishop to examine M.J.H. due to poor oral intake. (CESOF, ¶ 71). On May 27, 2010 Dr. Bishop diagnosed dehydration, in need of intravenous (hereinafter, " I.V." ) and ordered lab tests. ( Id. at ¶ 72; see also PSSOF, Exh. 12, pp. 47, 53). Dr. Bishop testified that he considered M.J.H.'s " situation somewhat of a medical emergency...." (PSSOF, Exh. 12, p. 53). Although he considered transporting M.J.H. to a higher level of care, he wanted to see the lab results and how M.J.H. responded to treatment. ( Id. ). If M.J.H.'s vital signs had been worse, transport would have been arranged, " [b]ut his vital signs were stable." ( Id. at p. 54). Although Dr. Bishop ordered I.V. fluids, he did not consider medication because " I felt that was totally psych's responsibility." ( Id. at p. 52; see also CESOF, ¶ 8 (" As a family practitioner, Dr. Bishop would not initiate anti-psychotic drugs." )). Lab reports confirmed that M.J.H. was suffering from significant dehydration. (CESOF, ¶ 76). Later on May 28, 2010 after M.J.H. had received I.V. fluids, Dr. Bishop noted his dehydration had improved. (PSSOF, Exh. 12, pp. 59-60).

Defense expert, Dr. Potts' " sense is ... from ... [May] 24th probably, certainly the 26th, 27th...[M.J.H.] was psychotic. So that is a given, It's well documented." (PSSOF, Exh. 7, pp. 22-23). According to Plaintiff's expert, Dr. Don, by May 24, 2010, M.J.H. was " ...

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