Opinion
Civil Action 21-cv-00957-CMA-MEH
09-08-2021
ESTATE OF CLINT LONG, by and through its Personal Representative Gage Long, and GAGE LONG, Plaintiffs, v. NATCORE HEALTHCARE INDUSTRIES, INC., DANIEL VAUGHT, SHERIFF ALLEN COOPER, in his official and individual capacities, THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF FREMONT, ADAM BEATY, DEREK IRVINE, CARRIE HAMMEL, and KAITLYNN ALCORN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
This lawsuit concerns the suicide of Clint Long (“Mr. Long”) while being held as a pretrial detainee at the Fremont County Detention Center (“FCDC”). Mr. Long's estate and his son, Gage Long (together, “Plaintiffs”), bring this suit against FCDC officials and the jail's private medical contractor, NatCore Healthcare Industries, Inc. (“NatCore”), asserting claims primarily for negligence and deliberate indifference. NatCore and Defendants Daniel Vaught, Adam Beaty and Kaitlynn Alcorn (collectively, “NatCore Defendants”) filed the present motion to dismiss (“Motion”) pursuant to Fed.R.Civ.P. 12(b)(6). ECF 32. The Motion is fully briefed and has been referred by District Judge Christine M. Arguello for a recommendation. ECF 33. The Court finds that oral argument would not materially assist it in adjudicating the Motion. As set forth below, this Court respectfully recommends granting in part and denying in part the Motion.
FACTUAL BACKGROUND
The following are the relevant, material factual allegations (as opposed to legal conclusions, bare assertions, or conclusory allegations) made by Plaintiffs in the Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs allege that NatCore was founded in October 2016 by Defendant Vaught. ECF 28 ¶ 32. In December 2016, Fremont County, though its board of county commissioners, signed a contract with NatCore for the provision of medical and mental health services to individuals in FCDC. Id. ¶ 33. In October 2018, Mr. Long began his on-again, off-again incarceration at FCDC. Id. ¶ 45. A NatCore official conducted an initial mental health evaluation, noting “Mr. Long's unspecified mood disorder, severe drug use, mania, paranoia, anxiety, depressive symptoms, past mental health treatment, previous prescriptions of psychotropic medications, and extensive history of head injuries.” Id. As part of that evaluation, Mr. Long told the NatCore official that “he felt ‘down, depressed, or hopeless,' and that for several days during that time he had ‘thoughts that [he] would be better off dead, or of hurting [himself].'” Id. ¶ 46. Based on the evaluation, the NatCore official recommended that Mr. Long be referred to a psychiatrist and to receive individual therapy. Id. ¶ 45.
Throughout 2018 and 2019, Mr. Long submitted several kites to NatCore staff requesting mental health treatment and describing his mental illness symptoms. Id. ¶ 47. For instance, on September 24, 2018, Mr. Long wrote a kite stating that he was bipolar, not sleeping, and “starting to hear those[] men talking in my head again I 0lease [sic] help me.” Id. ¶ 48. Another example is a kite written on August 9, 2019 regarding Mr. Long's need to see a psychiatrist and noting that the voices in his head were coming back. Id. ¶ 49.
In August 2019, Mr. Long suffered a seizure and was taken to the hospital. Id. ¶ 51. When he returned to FCDC from the hospital, officials found him bleeding from his face. Id. However, no NatCore medical personnel were on duty. FCDC officials attempted to reach NatCore personnel, but it was only after a delay that NatCore officials were able to relay any medical advice. Id. A similar situation occurred later in August 2019, when Mr. Long was found vomiting blood, but FCDC officials were only able to leave a voicemail for NatCore staff regarding this emergency. Id. ¶ 52. Plaintiffs allege that Mr. Long suffered unnecessarily during these incidents because of “NatCore's systemic understaffing of medical staff throughout their contract with Fremont County.” Id. ¶ 53.
Plaintiffs assert that problems of this nature persisted into 2020. Id. ¶¶ 54-62. For example, on March 6, 2020, FCDC officials witnessed Mr. Long convulsing with blood near his mouth and called NatCore medical staff to assist. Id. ¶ 63. NatCore staff placed Mr. Long on thirty-minute medical watch, meaning that he was to be checked on every half hour. Id. On March 7 and 8, 2020, officials failed to check on Mr. Long about half the time. Id. ¶¶ 64-65. These failures continued through March 18, 2020, even after other instances of Mr. Long suffering a medical emergency. Id. ¶¶ 66-74.
On March 19, 2020, fourteen days before Mr. Long's suicide, FCDC staff called NatCore personnel, including Defendant Beaty, to another medical emergency in Plaintiff's cell. Id. ¶ 75. Mr. Long complained about blood coming out of his ear and feeling like his head was burning. Id. When Defendant Beaty examined Mr. Long he “observed a possible foreign body or digital trauma in the exterior or mid ear canal.” Id. ¶ 76. Later, Defendant Beaty wrote in Mr. Long's medical record that he suspected Mr. Long had stuck his finger or some object into his ear to purposefully harm himself. Id. ¶ 77. To treat him, Defendant Beaty offered an ice pack and time alone “to allow [him] ‘to calm down.'” Id. ¶ 79. Mr. Long did not receive mental health care, Defendant Beaty did not place Mr. Long on suicide watch, and he was not classified as a Special Management Inmate. Id. ¶ 80.
A Special Management Inmate designation addresses “the possibility of self-inflicted injury and depression.” Id. ¶ 98.
Mr. Long was eventually placed on another thirty-minute medical watch. Id. ¶ 82. But officials failed to check on him every half hour. Id. Instead, FCDC officials again called Defendant Beaty because Mr. Long was found lying on his side with blood coming out of his nose. Id. ¶ 83. Defendant Beaty went to the FCDC master control room to review camera footage to determine the cause of the bloody nose. Id. ¶ 84. After reviewing the footage, Defendant Beaty discovered that Mr. Long gave himself the injury. Id. ¶ 85. Despite this, Defendant Beaty did not secure mental health care for Mr. Long or place him on suicide watch. Id. ¶ 87.
On March 19, 2020, Plaintiff's criminal defense attorney, Philip Dubois, filed an emergency motion for bond modification. Id. ¶ 89. Given Mr. Long's health concerns and lack of medical care, Mr. Dubois requested the immediate release of Mr. Long. Id. Mr. Dubois' motion noted that “Mr. Long has serious conditions that are unstable and not managed at the jail.” Id. The motion continued by asserting that Mr. Long was experiencing violations of his Eighth Amendment rights. Id. However, the Amended Complaint makes no mention that the motion described a fear of suicide.
On March 20, 2020, Mr. Long was found to have hidden pieces of broken glass in his cell. Id. ¶ 90. Nevertheless, NatCore and FCDC officials failed to check on him in thirty-minute increments. Id. ¶ 92. Mr. Dubois also filed an addendum to his emergency motion on that day. Id. ¶ 93. Mr. Dubois commented that “when he saw Mr. Long his ‘skin color was orange and mottled, '” but “‘[t]he jail's medical vendor's nurse w[ould] not communicate with the defense social worker.'” Id. The addendum requested that Defendant Vaught be made to testify regarding Mr. Long and to bring with him to a hearing a copy of Mr. Long's medical records. Id.
On March 21, 2020, Mr. Long told a NatCore employee that he was “losing his mind.” Id. ¶ 97. That employee contacted Defendant Vaught, who then reviewed Mr. Long's medical record and stated that he “is to remain on medwatch until [Defendant Vaught] evaluates him or says otherwise due to manipulation.” Id. ¶ 99. Even after reviewing the medical records, Defendant Vaught failed to get Mr. Long mental health care, put him on suicide watch, or classify him as a Special Management Inmate. Id. ¶ 101. Nor did NatCore and FCDC officials successfully check on Plaintiff in thirty-minute increments on this day. Id. ¶ 102.
On March 23, 2020, Mr. Long complained to FCDC officials that he was having “mental issues.” Id. ¶ 107. No one appears to have assisted with these issues. Id. ¶ 108. Mr. Long was on a one-hour medical watch, but NatCore and FCDC officials failed to check on him for over two hours. Id. ¶ 109. Also on this day, Judge Lynette Wenner of the 11th Judicial District Court emailed FCDC officials regarding Mr. Long and the emergency motion that had been filed. Id. ¶ 110. She informed officials that Mr. Dubois was requesting medical staff to appear at the motion hearing. Id.
Defendant Vaught received that email on March 24, 2020. Id. ¶ 113. Approximately forty minutes later, Defendant Vaught saw Mr. Long for a virtual medical appointment. Id. ¶ 123. Defendant Vaught also reviewed the medical records to prepare for the upcoming hearing. Id. Mr. Long told Defendant Vaught that he had been experiencing episodes brought on by severe anxiety.
Id. ¶ 124. When he heard this, Defendant Vaught wrote in Mr. Long's medical records: “refer to psych.” Id. ¶ 127. Defendant Vaught then released Mr. Long from medical watch but did not refer him to a psychiatrist or take any other action for Mr. Long to be seen by a mental health professional. Id. ¶¶ 128-29.
On the afternoon of March 24, 2020, the Fremont County District Court held the hearing on Mr. Long's emergency motion. Id. ¶ 130. Mr. Dubois called Defendant Vaught as a witness. Id. ¶ 132. He testified that people on medical watch are “essentially monitored 24 hours a day.” Id. ¶ 133. Further, he stated, “[Mr. Long] certainly is bipolar. That's what he told me today and I believe, I believe that.” Id. ¶ 135. Defendant Vaught's testimony also included mention that Mr. Long had been placed on a list a week before the hearing to see a psychiatrist but admitted that he knew Mr. Long had still not been seen. Id. ¶ 136-37. In fact, Defendant Vaught indicated that Mr. Long had not been seen by any physician while at FCDC from February 2020 to the date of the hearing. Id. ¶ 143. Finally, Defendant Vaught testified that other NatCore officials had told him about the incident in which Mr. Long had injured himself on video. Id. ¶ 138.
On March 27, 2020, Mr. Long attempted to get an extra dose of his anxiety medication, but his request was denied. Id. ¶ 144. NatCore officials did not provide him with an appointment with a mental health professional. Id. ¶ 145. On March 28, 2020, five days before his suicide, Mr. Long submitted a kite stating that he was having problems with the NatCore staff regarding receiving help with his anxiety issues. Id. ¶ 150. Later that day, an FCDC official documented that Mr. Long stood in the hall “of his unit and ‘started screaming, '” focusing his anger “‘on the control center and anyone who was in it.'” Id. ¶ 151.
On March 29, 2020, Mr. Long indicated that he would be rejecting all medications unless he was given twice as much anxiety medication. Id. ¶ 152. Despite this demand, no NatCore official provided Mr. Long mental health treatment. Id. ¶ 153. That evening, Mr. Long submitted another kite to NatCore medical staff, writing:
i am and have been seeing dead people when I wake up in my cell at night. They aren't dangerous but knowing they are not real is quite disturbing. I need to see a psychiatrist asap. I ave been diagnosed since age 13 having ADD, BIPOLAR 1, AGOROPHOBIA, MILD SCHIZOPHRENIA, and simce Panama, PTSD . . . Thank you, Mr. Long. I think so?[sic] Id. ¶ 154. Defendant Alcorn reviewed this kite and responded to Mr. Long that she would forward it to mental health staff. Id. ¶ 155. Defendant Alcorn did not forward the kite to any mental health care professional, nor did any other NatCore official. Id. ¶ 156. Mr. Long was not placed on medical or suicide watch after this kite. Id. ¶ 158. Defendant Alcorn did not record Mr.
Long's kite in his medical records. Id. ¶ 157.
On April 1, 2020, Mr. Long tested positive for strep throat. Id. ¶ 160. FCDC officials moved him to a medical isolation unit. Id. On April 2, 2020, Mr. Long committed suicide by hanging. Id. ¶¶ 162-72. There was a video camera in his cell with a live feed. Id. ¶ 172. He hung for thirty-seven minutes before he was found. Id. A FCDC official was supposed to be monitoring individuals in the medical isolation unit but failed to notice Mr. Long for over thirty minutes. Id. ¶ 173.
Plaintiffs allege that NatCore has a pattern and practice of providing inadequate medical care and failing to ensure adequate staffing. Id. ¶ 216. They contend that Defendant Vaught, as the CEO of NatCore, “acted as a final policymaker in the failure to provide medical care for Mr. Long.” Id. ¶ 219. Defendant Vaught and NatCore only subcontracted with “one mental health professional, who also worked at least one other job, to provide care part time.” Id. ¶ 225. They should and could have hired more officials to provide FCDC inmates mental health care “but chose such sparse staffing to save money.” Id. ¶ 228.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 680. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Plausibility refers “‘to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1192. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
ANALYSIS
Plaintiffs' Amended Complaint brings claims against the NatCore Defendants for violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983. Defendants Beaty, Vaught, and Alcorn (together, “Individual Defendants”) seek dismissal of the claims against them, because the allegations do not support a plausible claim for deliberate indifference. In particular, the Individual Defendants contend that Plaintiffs have not plausibly shown the subjective component of a deliberate indifference claim. Additionally, NatCore requests dismissal of the municipal liability claim against it, asserting that Plaintiffs have not plausibly alleged a policy, practice, or custom necessary to sustain the claim. The Court will address the claims against the Individual Defendant first before turning to the claim against NatCore.
I. Individual Defendants
“[C]laims based on jail suicide are considered and treated as claims based on the failure of jail officials to provide medical care for those in their custody.” Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015) (quoting Barrie v. Grand Cnty., 119 F.3d 862, 866 (10th Cir. 1997)). These claims implicate the Eighth Amendment's prohibition on deliberate indifference to medical needs. Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020). “[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (internal citation omitted). A claim for deliberate indifference must satisfy an objective and subjective component. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The objective component is met if the plaintiff can show that “the harm suffered is sufficiently serious to implicate the Cruel and Unusual Punishment Clause.” Id. (citation and quotation marks omitted). “To prevail on the subjective component, the prisoner must show that the defendants knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Id. (citation and quotation marks omitted). “‘[A]n inadvertent failure to provide adequate medical care' does not give rise to an Eighth Amendment violation.” Id. (quoting Estelle, 429 U.S. at 105-06).
A. Objective Element
“[T]he question raised by the objective prong of the deliberate indifference test is whether the alleged harm . . . is sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005). “A ‘medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'” Id. at 751 (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). Here, the Individual Defendants do not challenge the objective prong. Even if they had, suicide satisfies this element. Cox, 800 F.3d at 1240 n.3; see Martinez v. Beggs, 653 F.3d 1082, 1088 (10th Cir. 2009) (noting that death, ”without doubt, ” is “sufficiently serious to meet the objective component”).
B. Subjective Element
The focus of the Individual Defendants' Motion is whether Plaintiffs have plausibly pleaded the subjective component. This component requires a plaintiff “to establish that a medical ‘official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Strain, 977 F.3d at 990 (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (alteration in the original)). “[T]he symptoms displayed by the prisoner are relevant to the subjective component of deliberate indifference. The question is: ‘were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?'” Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (quoting Mata, 427 F.3d at 753). Ultimately, a “factfinder may conclude that a prisoner official subjectively knew of the substantial risk of harm by circumstantial evidence or ‘from the very fact that the risk was obvious.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 (10th Cir. 1994)). Yet, the Supreme Court has cautioned that “an obvious risk cannot conclusively establish an inference that the official subjectively knew of the substantial risk of harm, because ‘a prison official may show that the obvious escaped him.'” Id. (quoting Farmer, 511 U.S. at 843 n. 8). In the context of jail suicides, a plaintiff must plead the defendant's “particularized state of mind: actual knowledge by a prison official of an individual inmate's substantial risk of suicide.” Cox, 800 F.3d at 1249 (emphasis in original).
1. Defendants Beaty and Vaught
Throughout 2018 and 2019, Mr. Long submitted kites to NatCore staff, including Defendant Beaty. ECF 128 ¶ 47. An example is the one submitted on September 24, 2018 in which Mr. Long reported that he was bipolar, not sleeping, and hearing voices in his head. Id. ¶ 48. Mr. Long's medical issues escalated on March 19, 2020 when he had blood coming out of his ear and complained of his head burning. Id. ¶ 75. Defendant Beaty responded to that situation and observed that Mr. Long's ear canal showed signs of foreign body or digital trauma. Id. ¶¶ 75- 76. In other words, Defendant Beaty concluded (and even wrote in Mr. Long's medical records) that Mr. Long had purposefully harmed himself. Id. ¶ 77. For the burning in Mr. Long's head, Defendant Beaty offered an ice pack but did not otherwise secure mental health care for him. Id. ¶¶ 79-80. Defendant Beaty returned to Mr. Long's cell later that day when he was found lying on his side with blood coming from his nose. Id. ¶ 83. After reviewing video, Defendant Beaty confirmed that Mr. Long caused his injury. Id. ¶ 85.
Defendant Beaty challenges the Amended Complaint on the basis that these facts do not create the necessary knowledge of a substantial risk of suicide to state a claim. Mot. at 13. He points to Probst v. Cent. Ohio Youth Ctr., 511 F.Supp.2d 862 (S.D. Ohio 2007) as an example of what is necessary to state a claim for deliberate indifference. There, an inmate was placed on suicide watch after expressing that he was “feeling depressed anxious, and suicidal.” Id. at 865. The inmate was later taken off suicide watch and hung himself. Id. at 866. The court held that in light of the inmate's “history of erratic behavior and purported statement that he planned to kill himself, a jury could conclude that [the defendant's] recommendation to take him off suicide watch amounted to deliberate indifference.” Id. at 871.
Because of the factually intensive nature of the subjective component, the Court looks to other case law for guidance. In Heidel v. Mazzola, the inmate spent most of her time sleeping in her cell and refused to go outside during recreation time. 851 Fed.Appx. 837, 839 (10th Cir. 2021). She would eat some of her meals but showed signs of loss of appetite. Id. Three days after her arrest, the inmate committed suicide. Id. The Tenth Circuit held that the plaintiff could not establish a constitutional violation due to a failure to establish the “subjective awareness” of the inmate's suicide. Id. at 840. The court notes that “[a]lthough excessive sleeping, signs of diminished appetite, and refusing to go outside for recreation time can arguably be viewed as suicidal characteristics, they can be ‘susceptible to a number of interpretations.'” Id. (quoting Cox, 800 F.3d at 1253). The court further noted that “[n]o evidence suggest[ed] that [the inmate] mentioned her suicidal thoughts to an officer.” Id.
Similarly, in Estate of Burgaz by and through Zommer v. Bd. of Cnty. Comm'rs for Jefferson Cnty., Colo., this District found no allegations to support a claim for deliberate indifference. No. 19-cv-01383-SKC, 2021 WL 168441, at *4 (D. Colo. Jan. 19, 2021). In that case, the plaintiff was booked at a detention facility and “‘red-flagged' as a suicide risk” due to a history of mental illness and substance abuse. Id. at *1. As a result, she was transferred to a special housing unit. Id. One night, the plaintiff asked a deputy what her release status was, and he answered that because she had two warrants from another jurisdiction that she was ineligible for release. Id. Shortly thereafter, the deputy transferred the plaintiff to a dayroom, where she later started banging on the door to get someone's attention. Id. After no one responded, the plaintiff fashioned a noose from television wires in the room and hung herself. Id. The court held that the plaintiff failed to establish the subjective component of a deliberate indifference claim because the allegations were “so general [that] they encompass a broad swath of conduct or a wide range of assumed knowledge, and therefore, fail to nudge the deliberate indifference claim ‘across the line from the conceivable to plausible.'” Id. at *4 (quoting Twombly, 550 U.S. at 570).
Other cases provide a strong picture of what can satisfy the subjective component. Palakovic v. Wetzel, 854 F.3d 209, 2016 (3d Cir. 2017) (finding deliberate indifference with inmate who had a history of attempted suicide, expressed recent suicidal ideation, and was nicknamed “Suicide” by other inmates); Holbert v. Cimarron Cnty. Sheriff's Dep't, No. CIV-20-887-R, 2021 WL 111868, at *4 (W.D. Okla. Jan. 12, 2021) (finding deliberate indifference based on claims that inmate “‘posed a risk to himself based on his psychiatric problems, mental illness, mental health issues, mental state and/or hallucinations,' and that yet, he was still placed alone in a cell with an extension cord”); Shepard v. Hansford Cnty., 110 F.Supp.3d 696, 709-10 (N.D. Tex. May 22, 2015) (finding genuine dispute of material fact as to subjective element when evidence demonstrated defendant knew the inmate had experienced suicidal thoughts within the past year and had been placed on suicide watch).
Acknowledging that it is a close call, the Court concludes that Plaintiffs here have plausibly stated a claim against Defendant Beaty. This case is not like Probst, Palakovic, or Shepard in which the outward expressions of suicide could not be clearer. Mr. Long did not explicitly say he was suicidal, have a history of past suicide attempts, nor was his predisposition to suicide so apparent that others nicknamed him “Suicide.” But neither is this case akin to Heidel or Estate of Burgaz in which the defendant's connection to the inmate's suicide was tenuous. Here, Defendant Beaty witnessed and recorded on two separate occasions the harm Mr. Long inflicted on himself. See Downard for Estate of Downard v. Martin, 968 F.3d 594, 601 (6th Cir. 2020) (noting that even under the Sixth Circuit's heightened standard that evidence of a “recently expressed . . . desire to self-harm” satisfies the subjective component). These instances occurred just weeks before Mr. Long's suicide. Further, they followed years of kites indicating Mr. Long's mental health battles, including hearing voices in his head. Defendant Beaty did not connect Mr. Long with a mental health care professional or otherwise place him on suicide watch. Plaintiff does not need to allege that Defendant Beaty knew Mr. Long would in fact commit suicide; rather, all that is needed are allegations that establish Defendant Beaty had particularized knowledge of a substantial risk of suicide and recklessly disregarded that risk. Cox, 800 F.3d at 1249-50. Plaintiffs have done so.
Based on this analysis, the same outcome is warranted for Defendant Vaught. In reviewing Mr. Long's medical records, Defendant Vaught contained the same knowledge of Mr. Long's self-harm incidents that Defendant Beaty had. Yet, Defendant Vaught is alleged to also have done nothing for Mr. Long's mental health. Therefore, the Court will also recommend denial of the Motion as to him. However, it is worth noting that the allegations against Defendant Vaught make an even stronger claim against him than Defendant Beaty. In addition to reviewing the medical records containing the instances of self-harm, another official told Defendant Vaught about Mr. Long's “self-injurious behavior.” ECF 28 ¶¶ 114-15. Despite this, when Defendant Vaught conducted a medical visit with Mr. Long, he took Mr. Long off medical watch. Id. ¶ 125. Thus, not only did Defendant Vaught fail to provide any mental health care for Mr. Long, but Defendant Vaught also took him off the only ongoing process for monitoring him. See Probst, 511 F.Supp.2d at 871 (finding that a jury could conclude deliberate indifference by taking the inmate off suicide watch despite a history of erratic behavior). These allegations bolster the plausible claim of deliberate indifference asserted against Defendant Vaught.
2. Defendant Alcorn
The allegations made against Defendant Alcorn are more limited than those against Defendants Beaty and Vaught. On March 29, 2020, Mr. Long wrote a kite in which he stated, among other things, that he was seeing dead people. ECF 28 ¶ 154. Defendant Alcorn reviewed this kite and responded that she would forward it to mental health staff. Id. ¶ 155. She did not, however, forward it to a mental health care professional. Id. ¶ 156. Nor did she record Mr. Long's request in his medical records. Id. ¶ 157. She did not put him on medical or suicide watch, did not classify him as a Special Management Inmate, or provide him with mental health care. Id. ¶¶ 158-59.
These allegations are insufficient to establish the requisite state of mind for Defendant Alcorn. Plaintiffs do not allege that she was aware of the other actions and events described in the Amended Complaint. All the Court may glean from the Amended Complaint is that Defendant Alcorn was aware that Plaintiff was seeing hallucinations of dead people. But that, alone, does not create a particularized knowledge that Mr. Long presented a substantial risk of suicide. Cox, 800 F.3d at 1251. Certainly, that kite would put Defendant Alcorn on notice that Mr. Long's mental health was suffering. The fact that she did not forward the kite along to mental health professionals likely means she acted negligently, but that, of course, is not the standard for a deliberate indifference claim. Spradley v. LeFlore Cnty. Detention Center Pub. Trust Bd., 764 Fed.Appx. 692, 699 (10th Cir. 2019) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)) Here, Plaintiffs needed to demonstrate that Defendant Alcorn subjectively disregarded “the risk of [Mr. Long's] claimed harm-death.” Martinez, 563 F.3d at 1090. Plaintiffs have not done so. Therefore, the Court respectfully recommends granting the Motion as to Defendant Alcorn.
II. NatCore
Plaintiffs also assert a municipal liability claim against NatCore pursuant to 42 U.S.C. § 1983. “‘[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.'” Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175, 1189 (10th Cir. 2010) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)). This type of liability may attach to private actors, but they “‘cannot be held liable solely because it employs a tortfeasor-or, in other words, . . . cannot be held liable under § 1983 on a respondeat superior theory.'” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)). Instead,
[m]unicipal liability may be based on a formal regulation or policy statement, or it may be based on an informal “custom” so long as this custom amounts to “a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a ‘custom or usage' with the force of law.'”Brammer-Hoelter, 602 F.3d at 1189 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). In other words, “[t]o be liable, the municipality must have had an official municipal policy of some nature that was the direct cause or moving force behind the constitutional violations.” Dubbs, 336 F.3d at 1215 (internal citations and quotation marks omitted).
NatCore seeks dismissal of the Monell claim because “[n]o decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols[, ] . . . [or] even discusses suicide screening or prevention protocols.” Taylor v. Barkes, 575 U.S. 822, 826 (2015). Moreover, NatCore argues that the “Constitution does not require a healthcare entity providing services to a jail to have someone with specific credentials available to evaluate inmates for potential suicide risk.” Mot. at 15 (citing Ernst v. Creek Cnty. Pub. Facilities Auth., 697 Fed.Appx. 931, 934 (10th Cir. 2017)). Plaintiffs argue that this argument mischaracterizes the basis for the Monell claim, because Plaintiffs allege a policy or custom of purposefully being understaffed as opposed to alleging the need to have someone with particular credentials available. Resp. at 13. The Court agrees.
Plaintiffs alleged that NatCore was short staffed at least seventy-four percent of the time during 2020. ECF 28 ¶¶ 11, 227. NatCore also decided to only subcontract with one mental health professional, who was part time because he worked at least one other job. Id. ¶ 225. For the weeks preceding Mr. Long's suicide, NatCore staff repeatedly failed to conduct timely medical checks on Mr. Long. Id. ¶¶ 63-65, 67, 70, 82, 92, 102, 106, 109. Even on the day of the suicide, despite being in an isolated medical unit with a camera for observation, Mr. Long was left unobserved for so long that he was not discovered until after thirty-seven minutes of hanging. Id. ¶¶ 4, 163-75. These outcomes are the result of NatCore's choice to hire fewer staff to save money. Id. ¶ 228.
The Court finds Layton v. Bd. of Cnty. Com'rs of Oka. Cnty instructive. 512 Fed.Appx. 861 (10th Cir. 2013). There, an inmate had pre-existing medical conditions, including congestive heart failure which necessitated a pacemaker. Id. at 863. A cardiologist who had seen the inmate called jail staff to say that his pacemaker needed to be replaced. Id. When the pacemaker was checked, it was found to be pacing one hundred percent of the time; nevertheless, follow-up treatment was recommended every twelve weeks. Id. No such follow-up treatment was ever provided. Id. Subsequently, on two separate occasions, the inmate was found in his cell either unresponsive or unable to verbalize what was wrong. Id. On the first occasion, he was evaluated, and the treating physician indicated that further monitoring would be necessary. Id. On the second occasion, staff performed tests and drew blood for analysis, which later came back indicating that “acid was piling up in his blood.” Id. Yet, officials took no action following the test results. Id. at 864. Around two weeks later, the inmate was found unresponsive in his cell and later died at the emergency room. Id.
The trial court granted summary judgment for the defendants, including on the Monell claim. Id. at 863. The Tenth Circuit reversed, finding that the plaintiffs “presented sufficient evidence to demonstrate a ‘direct causal link,' between the County's (in)action and the deprivation of [the inmate's] constitutional right to receive adequate medical care.” Id. at 872. Specifically, the court noted that “a reasonable jury could find that, had [the inmate's] cell been monitored on a more regular basis, prompt intervention would have prevented his death.” Id. The same is true here. In this case, Plaintiffs have plausibly alleged that NatCore had a “widespread practice” of understaffing in order to save costs. Due to that practice, NatCore was unable to adequately monitor Mr. Long or provide him with mental health care. Failing to do so was a direct causal link in Mr. Long's suicide. Consequently, Plaintiffs have plausibly stated a Monell claim against NatCore, and the Motion should be denied as to that claim.
Because the Court finds the claim plausibly pleaded on this basis, the Court does not address the parties' final policymaker arguments.
III. Leave to Amend
“In dismissing a complaint for failure to state a claim, the court should grant leave to amend freely ‘if it appears at all possible that the plaintiff can correct the defect.'” Triplett v. LeFlore Cty., Oklahoma, 712 F.2d 444, 446 (10th Cir. 1983) (quoting 3 Moore's Federal Practice, ⁋ 15.10 & n. 2 (1983)). However, “[a]t least outside of the pro se context, when a litigant fails to put the district court on adequate notice-in a legally cognizable manner-of his request for leave to amend, then the district court will not be faulted for failing to grant leave to amend.” Doe v. Heil, 533 Fed.Appx. 831, 847 (10th Cir. 2013). Here, the Court recommends dismissing the claims against Defendant Alcorn. Plaintiffs are represented by counsel, and Plaintiffs already amended their Complaint once. Plaintiffs have made no subsequent attempt to amend. If the Court were to recommend granting leave now, it would be acting sua sponte. The Court will not do so. Id. (“[W]e will not upset the district court's dismissal with prejudice on the grounds that it failed sua sponte to give [the plaintiff]-who was represented by counsel-an opportunity to file an amended complaint.”); see Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir. 1999) (“Although leave to amend should be liberally granted, a trial court is not required to sua sponte grant leave to amend prior to making its decision [to dismiss].”). Accordingly, for the dismissal of Defendant Alcorn, the Court recommends doing so with prejudice.
CONCLUSION
For the reasons stated herein, the Court respectfully recommends granting in part and denying in part the NatCore Defendants' Motion [filed July 22, 2021; ECF 32]. The Motion should be granted as to the claim against Defendant Alcorn, and the dismissal should be with prejudice. The Motion should be denied as to the claims against Defendant Beaty, Vaught, and NatCore.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).