Smith v. McNesby

Full title: ESTELLE SMITH, as Personal Representative of the Estate of ROBERT E…

Court: United States District Court, N.D. Florida, Pensacola Division

Date published: Sep 28, 2007

Case No. 3:05cv410/MCR (N.D. Fla. Sep. 28, 2007)

Opinion

Case No. 3:05cv410/MCR.

September 28, 2007

ORDER

M. RODGERS, Magistrate Judge

In this action Estelle Smith ("Smith"), as personal representative of the Estate of Robert E. Boggon ("Boggon"), sues Escambia County Sheriff Ron McNesby ("McNesby"), seven Escambia County Deputy Sheriffs, Prison Health Services, Inc., and five Prison Health Services, Inc., employees pursuant to 42 U.S.C. § 1983. Smith is the spouse of Boggon, who died August 29, 2005, while he was detained at the Escambia County Jail ("ECJ" or "Jail"). In her second amended complaint Smith alleges nineteen violations of the Eighth and Fourteenth Amendments of the U.S. Constitution, including cruel and unusual punishment; use of excessive force; failure to intervene in the use of excessive force; deliberate indifference to serious medical needs; and failure to train and supervise. As relief, Smith seeks compensatory and punitive damages, attorney's fees, and costs. Pending before the court are the defendants' eight motions for summary judgment, to which Smith has responded in opposition.² Also pending is Smith's Motion for Leave to File NCCHC Report which, as set forth below, the court denies.³ Additionally, the court grants the motions for summary judgment of defendants Gregory, Szmurlo, Merritt, Hankinson, McNesby and PHS; denies the motions of Day, B. Whitlock, and Lastinger; and grants in part and denies in part the motions of defendants Driver, L. Whitlock, Burden, and Helms.

2 The docket numbers of the defendants' motions for summary judgment and plaintiff's respective responses are Helms: docs. 172, 202; Gregory: docs. 173, 201; Burden: docs. 174, 199; L. Whitlock: docs. 175, 206; PHS: docs. 177, 204; Szmurlo: docs. 181, 205; McNesby: docs. 182, 203; and Day, Driver, Hankinson, Lastinger, Merritt, and B. Whitlock: docs. 184, 200. The parties have also filed materials in support of the motions for summary judgment, docs. 176, 186, 196, and 197, and in opposition to the motions, docs. 207, 240, and 267. With leave of court Szmurlo has also replied to Smith's response opposing summary judgment. Doc. 247.

3 Doc. 278.

MOTION FOR LEAVE TO FILE NCCHC REPORT

The court first addresses Smith's motion to file the NCCHC [National Commission on Correctional Health Care] Report of an institutional survey of the ECJ conducted in July 2006.⁴ The defendants have responded in opposition, arguing that the Report constitutes inadmissible hearsay and is irrelevant.⁵ Further, they contend the Report is protected by the privilege of self-critical analysis, constitutes inadmissible evidence of subsequent remedial measures, and was untimely raised if intended to serve as expert witness testimony. The defendants also suggest that if the Report is admitted, another report which conflicts with the NCCHC Report should likewise be admitted.

4 Smith also seeks to hold in contempt the Escambia County Sheriff's Office ("ECSO") deputy who stated in an affidavit that the Report did not exist. Additionally, Smith complains that McNesby should be sanctioned for failing to disclose the name of inmate witness Alonzo Coleman ("Coleman").

5 See docs. 278, 284, 289, 290, 292, 305, 314, 315, and 316.

The NCCHC Report constitutes hearsay. The Report does not, as Smith submits, fall under the exception provided in Fed.R.Evid. 803(6) as it is not a record of a regularly conducted business activity of the ECSO. Nor has Smith shown, as she also argues, that the NCCHC Report is admissible as a public record under Fed.R.Evid. 803(8).⁶ See also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The proponent seeking the admission of evidence pursuant to Rule 803(8) must establish that the basic affirmative requirements of the rule have been satisfied, see Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000) (discussing Rule 803(8)(C)), but Smith has failed to do so. First, she has not shown that the NCCHC document is the report of a public office or agency. See,e.g., Erickson v. Baxter Healthcare, Inc., 151 F.Supp.2d 952 (N.D.Ill. 2001) (admitting report from Institute of Medicine, a private subsidiary of the private entity National Academy of Sciences under Rule 803(8); court reasoned that Academy was a quasi-public entity created by Act of Congress specifically to conduct investigations for and report to Congress, and the subject report was within that mandate). Indeed, defendants describe the NCCHC as a private organization, and there is no evidence that the NCCHC should be considered even a quasi-public entity. Moreover, even if Smith cleared the hurdle of showing that the NCCHC is at least a quasi-public office or agency, she has not shown that the NCCHC Report pertains to matters observed pursuant to a duty imposed by law or contains factual findings resulting from an investigation made pursuant to authority granted by law. The court therefore finds that Smith has not shown that the NCCHC Report is a public document as defined by Rule 803(8) and thus admissible pursuant to that rule.

6 Fed.R.Evid. 803(8) provides:

Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Because Smith has offered no acceptable basis for admitting the document, the court shall deny the Motion to File the NCCHC Report, without prejudice. If Smith can supply adequate support for admission of the Report, she may renew her motion at trial for use during her case in chief or for purposes of impeachment.⁷

7 Accordingly, no sanctions shall be imposed with respect to the disclosure of the NCCHC Report. Even if the Report had been admitted, however, the court would not have imposed sanctions. The Report is dated November 17, 2006, and the cover letter providing a copy of it to McNesby is dated December 7, 2006. The Report could not, therefore, have been reviewed at the August 2006 meeting that was the subject of requests for production by Smith which she contends the defendants knowingly refused to honor.
Nor shall sanctions be imposed with respect to McNesby's alleged failure to disclose Coleman as a witness. Records submitted by McNesby show that on August 29, 2005, Coleman was not present in the areas of the Jail where he might have viewed the events relevant to this case that are the subject of his affidavit. Thus McNesby's contention that Coleman was not disclosed as a witness because McNesby was unaware that Coleman had any relevant testimony to offer is plausible and accepted by the court.

MOTIONS FOR SUMMARY JUDGMENT

Summary Judgment Standard

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Anderson, 477 U.S. at 248; Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nevertheless, a general denial unaccompanied by any evidentiary support will not suffice. See,e.g., Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991); Hutton v. Strickland, 919 F.2d 1531 (11th Cir. 1991). Moreover, the existence of a scintilla of evidence in support of the nonmovant's position is insufficient; the test is "whether there is [evidence] upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.

Background

As noted, at summary judgment this court must view the facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., 475 U.S. at 587. Accordingly, the following facts are recited in the light most favorable to Salter or, except as noted, are undisputed. Nevertheless, the court observes that what are stated as "facts" herein for purposes of summary judgment review may not be the actual facts or all of the facts.See Montount v. Carr, 114 F.3d 181, 182 (11th Cir. 1997); see also Sharpley v. Raley, 2005 WL 2840263, *2, n. 2 (11th Cir. 2005).

Friday, August 19, 2005, through Monday, August 22, 2005

On Friday, August 19, 2005, Boggon and his half-sister, Willie Miller, stopped at a Dollar Store located near Highway 29 and Detroit Boulevard in Pensacola, Florida, to do some shopping. While in the store Boggon caused a disturbance that resulted in the store's personnel calling the ECSO for assistance.⁸ The Sheriff's Office dispatcher put out a call to deputies advising of the request for assistance and notifying them of reports from other callers of a subject inside the Dollar Store who had a firearm. A sheriff's deputy arrived on-scene and in the store's parking lot located a man, later identified as Boggon, who fit the description of the subject provided by dispatch. Concerned that an armed robbery might have just taken place in the Dollar Store, the deputy stopped Boggon, then handcuffed him and searched his person. No firearm was found. The deputy described Boggon's demeanor as "fine" one moment and then agitated, combative, and irrational the next.⁹ The deputy also noted that when he asked Ms. Miller whether Boggon had been diagnosed with or was on medication for mental problems she indicated "no."¹⁰ Boggon was placed under arrest and transported to the ECJ, where he was later booked and charged with aggravated assault and criminal mischief.¹¹

8 Doc. 176-2, Exh. 1 at 4. All references to page numbers in this order are as enumerated by the court rather than as by the parties.

9 Id. at 6-7.

10 Ms. Miller later testified, however, that Boggon had been hospitalized with a "mental breakdown" about five years earlier when he was living in Maryland. Other than that episode, according to Ms. Miller, Boggon had been "fine." Doc. 176-2, Exh. 2 at 12.

11 Doc. 186-3 at 8.

In August 2005 PHS was under contract with Escambia County to provide medical and psychiatric care to pretrial detainees and inmates at the ECJ.¹² As part of the ECJ routine intake procedure, a PHS emergency medical technician ("EMT") conducted a medical screening of Boggon. On the screening form the EMT described Boggon as a black male born in 1940 who was 60 tall and weighed 216.5 pounds.¹³ Boggon was described as calm, cooperative, and non-violent. According to the EMT, Boggon reported that he had no medical problems, such as asthma, heart condition, high blood pressure, etc., and that he was taking no medications.¹⁴ Because Boggon refused to sign the screening form and his blood pressure was an abnormally high 198/107¹⁵ (and Boggon had indicated he would refuse any medication for this condition), the EMT referred Boggon to the infirmary for further evaluation.¹⁶ The licensed practical nurse ("LPN") who assessed Boggon in the infirmary reported blood pressure readings of 200/110 and 220/138.¹⁷ She obtained authorization to place Boggon on hypertension medication on an emergency basis but Boggon refused the treatment, stating that he wanted to see his wife or father first. The LPN described Boggon's mental state as "confused."¹⁸

12 Doc. 99; doc. 141. It appears that another health care provider, rather than PHS, now provides such services to Escambia County. Doc. 240-7 at 8.

13 Doc. 186-3 at 11.

14 Doc. 176-3, Exh. 5 at 3.

15 The Merck Manual classifies optimal blood pressure for an adult as being less than 120 systolic mm. Hg. and less than 80 diastolic mm. Hg. High normal readings are 130-139 mm. Hg. systolic or 85-89 mm. Hg. diastolic. Stage 1 hypertension (mild) is from 140-150 mm. Hg. systolic or 90-99 mm. Hg. diastolic; Stage 2 hypertension (moderate) is from 160-79 systolic or 100-109 diastolic; and Stage 3 hypertension (severe) is from 160-79 systolic or 100-109 diastolic. The Merck Manual, 17th ed. 1999, p. 1633.

16 Doc. 176-3, Exh. 5 at 3.

17 Doc. 186-3 at 18.

18 Id.

Defendant L. Whitlock is a registered nurse who was employed by PHS and worked at the ECJ at the time of the events giving rise to this case. On August 19, 2005, at approximately 9:00 p.m., she was conducting rounds in the infirmary, where Boggon was being held.¹⁹ L. Whitlock examined Boggon and noted on his chart that his blood pressure was 188/110. Boggon informed her that he had not taken any medications or received any medical treatment for hypertension in the past. Boggon also refused to answer L. Whitlock's questions regarding his arrest, stating "`I ain't going to do nothing until I talk to my wife and brother.'"²⁰ L. Whitlock reported that Boggon was confused and "possibly doesn't understand being arrested or where he's at."²¹ She indicated in her notes that Boggon should be placed under a twenty-three hour mental health observation and have his blood pressure monitored for seven days.

19 There appears to be no evidence that Boggon was ever formally admitted to the infirmary as a patient, rather than being simply housed there, while he was detained at the Jail.

20 Doc. 186-3 at 18.

21 Id.

L. Whitlock also submitted a written referral to the ECJ mental health department requesting that Boggon undergo a mental health assessment.²² At the time she wrote the referral L. Whitlock knew that because the weekend had just commenced Boggon would not be seen by a mental health counselor ("MHC") until Monday, August 22nd, unless the referral was identified as an emergency.²³ At that time L. Whitlock felt that Boggan did not require an emergency mental health assessment, however, so she did not request one.²⁴

22 Doc. 176-3, Exh. 8 at 19.

23 MHC Lynne Owsley ("MHC Owsley") worked in the ECJ mental health department in August 2005. Smith asserts that L. Whitlock had no contact with MHC Owsley on August 19th regarding Boggon but "falsely" indicated otherwise by noting on the Physicians' Orders sheet that she had received a verbal order from her for Boggon's mental observation and evaluation, as well as blood pressure monitoring. See doc. 198 at 4 and 13; doc. 179 at 8. In support of this argument, Smith cites "p. 127" and "pp. 126-130" of L. Whitlock's deposition and the "Owsley Deposition."
Smith's citation to the record is insufficient. She has failed to specifically identify the location in the record of the referenced pages in order to allow the court to readily locate and check the sources, as required by N.D.Fla.Loc.R. 56.1. Also, no pages numbers are cited for the 132 page Owsley deposition (which is also true with respect to many of the other depositions referenced by Smith). Additionally, in the depositions given by L. Whitlock and B. Whitlock the court could not locate all of the pages Smith cites. See doc. 176-3, Exh. 10; doc. 186-18. In this regard, the court notes that Smith frequently — and certain other parties occasionally — failed to adequately identify the location of documents in the record, to identify specific page numbers within those documents, or — in some instances — to even provide the documents cited in their memoranda. The failure to fully comply with Local Rule 56.1 has made the court's task in reviewing the voluminous record in this case, already an arduous undertaking, even more difficult. Where the parties' references are unacceptably vague or absent, such failure may have resulted in the court's deeming the fact at issue to have been admitted for purposes of summary judgment. As a final note, although not required by the rules of this court, the court observes that because none of the parties Bates-stamped their exhibits, their references to specific pages of the documents are not consistent or systematic.
In any event, as to the issue of the August 19, 2005, entry on the Physicians' Orders sheet, L. Whitlock does not dispute that she made the entry without actually speaking with MHC Owsley. MHC Owsley stated in her affidavit, however, that a standing verbal order existed that allowed the nurses in non-emergency situations to initiate twenty-three hour mental health observations at night without contacting her. MHC Owsley also indicated that she or other mental health care staff were on-call at night and over the weekends to handle emergencies and could be contacted at any time for that purpose. Additionally, in the event that a nurse-ordered observation was started over the weekend, it was understood that an evaluation by a mental health counselor would be made the following Monday. Doc. 176-3, Exh. 9. Although in her deposition MHC Owsley indicated she "didn't know about this verbal order stuff," she also stated that an unwritten policy provided that in non-emergency situations nurses could place an inmate under observation without first obtaining verbal permission. Doc. 240-5 at 65. For these reasons, the court concludes that Smith's accusation that L. Whitlock made a "false" entry on Boggon's medical chart regarding the order to place Boggon under observation therefore is a gross overstatement, if not one that is unsupported and contradicted by the record.

24 Doc. 176-3, Exh. 8 at 19.

On August 20th Boggon permitted PHS staff to monitor his blood pressure, which reportedly was 158/98. On August 21st Boggon continued to refuse hypertension medication but again allowed monitoring of his blood pressure, which was noted as being 128/88.²⁵ The records for August 20th and 21st contain no references to Boggon's mental health, including any mention of unusual incidents involving Boggon or assessments of his mental health status. As reported in a progress note dated Monday, August 22, 2005, 10:00 a.m., a PHS mental health counselor came to Boggon's room to speak with him but Boggon was verbally unresponsive and attempted to run out of the cell.²⁶ The counselor's note indicates that he would follow up with Boggon later in the afternoon but the record reflects no additional entries by mental health department staff for August 22nd.

25 Doc. 186-3 at 18.

26 Id. at 19.

Defendant Hankinson is a corporal with the ECSO who worked at the ECJ in August 2005. Sometime between August 19th and August 23rd, Hankinson was called to the Jail infirmary to address a problem involving Boggon. Hankinson determined that Boggon, who was nude, had been pounding on his cell window and masturbating in front of a female deputy. Boggon would not stop this conduct when directed to do so.²⁷ Hankinson ordered Boggon out of his cell but Boggon refused to comply. Nevertheless, even while Boggon was vehemently refusing to leave his cell he walked with Hankinson and another male deputy to another cell in the infirmary and entered it without the deputies' having to employ any physical force.²⁸ Tuesday, August 23, 2005

27 Doc. 176-5, Exh. 13 at 38, 43.

28 Id. at 39.

On the morning of August 23, 2005, Hankinson was again called to Boggan's cell in the infirmary because Boggon reportedly would not stop "screaming, yelling, beating, and banging."²⁹ Hankinson told Boggon that the noise was bothering sick inmates. Hankinson was also concerned that the disturbance would incite mentally ill inmates who were housed in the infirmary to cause further disruption. When told he would have to be moved to a holding tank because he would not be quiet, Boggon refused to go, raising his fists and taking a defensive stance. Hankinson retreated from the cell to avoid a confrontation and contacted the ECJ's security support team.

29 Id. at 44.

Defendant Driver, an ECSO deputy sheriff, was one of the security support team's two members who were on duty at the Jail on August 23, 2005. Shortly after Hankinson's call, Driver and the other member of the team arrived in the infirmary to effect Boggon's cell transfer to the Phase One holding tanks.³⁰ Driver and the other deputy cuffed Boggon, with his hands behind his back, and started walking towards the holding tanks with Boggan between them, each deputy holding one of Boggon's elbows. As they walked Boggan cursed, made verbal threats of physical violence, and tried to break free from the deputies by buckling his knees and jerking from side to side.³¹ Boggon briefly escaped the grasp of one of the deputies and began kicking at the officers. Driver elevated Boggon's handcuffed wrists in an attempt to control Boggon but he continued to resist.³² The officers were able to place Boggon inside the Phase One cell, where Boggon started kicking the door and threatening violence as soon as the handcuffs were removed. Based on Boggon's disruptive and violent conduct, Hankinson decided to place Boggon in the emergency restraint chair³³ "to avoid any confrontation and to keep him from beating and banging on the door."³⁴ This was accomplished at approximately 8:50 a.m., with some assistance from the second member of the security support team; Driver did not participate.³⁵ Soon after Boggon was secured in the restraint chair the security support team left the area.

30 Driver testified that the Phase One tank was located "up the infirmary hallway to the left, down the right hallway, and to the left down another hallway. It's just probably 50 feet from his cell actually traveling through the hallway." Doc. 176-4 at 19.

31 Id. at 45-46.

32 Doc. 186-4 at 3-10. Driver testified that his report initially contained references to Boggon's threats of physical violence for which Driver recommended disciplinary action be taken. Driver removed the references, however, when he concluded that Boggon was "mentally deranged," see doc. 186-4 at 7, and would therefore not be subject to punishment for his conduct. Driver stated that although he removed the reference to Boggon's threats in his report he inadvertently failed to remove the recommendation for disciplinary action. Upon review of Driver's report, a supervisor rejected the recommendation as being without foundation.

33 See doc. 207-23. The emergency restraint chair is manufactured by E.R.C., Inc., which provides instruction booklets and a video for its use. The booklet in evidence directs that detainees should not be left in the chair more than two hours at a time but that the time can be extended by eight hours under the direct supervision of a nurse or physician. E.R.C., Inc., thus recommends that detainees not be left in the chair for more than ten hours total.

34 Doc. 176-5, Exh. 13 at 47. Due to his rank as an officer in the ECSO, Hankinson was a supervisor with authority to direct an inmate's placement in the restraint chair. See doc. 207-26 at 8.

35 Doc. 176-4, Exh. 13 at 18; Att. 1.

Defendant Burden is a LPN who was employed by PHS in August 2005. She was on duty at the Jail the morning of August 23rd and attempted to examine Boggon soon after his placement in the restraint chair.³⁶ Boggon would not permit Burden to check his pulse and was verbally abusive towards her, ³⁷ but he allowed her to take his blood pressure. Burden reported that at 8:56 a.m. Boggon's blood pressure was 160/108 and that he was in no apparent distress.³⁸ Pursuant to ECJ policy Burden rechecked Boggon every two hours.³⁹ At 11:00 a.m. she documented his blood pressure (148/80) and noted that his restraints were unrestricted. At 1:00 p.m. Burden again noted Boggon's blood pressure (150/76) and that he was calm, quiet, and in no apparent distress. One of Boggon's arms was released from the restraints at lunchtime so that he could hold his own beverage while Burden fed him several sandwiches.⁴⁰ Hankinson testified that during the day he "periodically" visited Boggon while he was restrained in the chair, often entering his cell with the attending nurse while she took Boggon's vital signs. According to Hankinson, "[a]t times, [Boggon] was calm, but as soon as I went to talk to him or something, he'd scream, yell, become combative."⁴¹

36 The nurse defendants acknowledge that during shift changes outgoing staff were expected to adv ise incoming staff of pertinent information regarding the inmates under their care, and the incoming shift was supposed to review the inmate patients' medical records. The deputy defendants likewise acknowledge that during the shift change departing staff members were expected to exchange information regarding inmates with those just coming on duty.

37 Id.

38 Doc. 186-4 at 2.

39 In August 2005 ECSO General Order 819.0.7.8.6. was in effect and provided that every two hours medical staff should check inmates who were confined in a restraint bed or chair. See doc. 207-26 at 8. Additionally, ECSO General Order 819.0.7.8.9 provided that an inmate who had been confined in the restraint chair should "be considered for removal at least hourly." Section 10 provides that the inmate will not be released "a. Until it is believed the inmate is no longer a threat to self or others; b. The inmate can be reasonably controlled by staff; c. Authorized by a supervisor." Doc. 207-26 at 8.
PHS also instructed its employees regarding the monitoring of inmates in both clinically-ordered and custody-ordered restraints. With respect to custody-ordered restraints, PHS' policy provided that when such restraints were used PHS staff should be notified in order to review the inmate's health record for contraindications or needed accommodations, to initiate health monitoring at designated intervals, and to notify a physician if the restrained inmate had a medical or mental health condition so that appropriate orders could be given. Doc. 207-20 at 2.

40 Doc. 176-6, Exh. 16 at 24-25.

41 Doc. 176-5 at 73.

Around midday on August 23rd, Burden received a telephone call from a woman who identified herself as Boggon's wife. The caller indicated that Boggon took many medications and that if he did not receive his medications he became angry and upset. The caller did not know the names of the medications but indicated she would call back with the information later. The caller further informed Burden that Boggon feared persons in white coats and uniforms because he had been in and out of institutions; such persons tended to make him angry and agitated. Burden apparently made no written record of the telephone call but testified that she advised MHC Owsley that she had spoken with Boggon's wife.⁴²

42 Smith asserts that Burden failed to relay the information obtained from Boggon's wife to a physician for specific orders regarding Boggon's care. Burden contends, however, that she provided numerous details of her conversation to MHC Owsley, who then conveyed the information to Szmurlo. Doc. 176-6, exh. 15 at 4. MHC Owsley recalls her conversation with Burden otherwise, stating that had the details been given to her they would have been included in her report. Doc. 240-4 at 33.

Szmurlo is a PHS psychiatrist who was on duty at the Jail on August 23, 2005. After learning of the call from Boggon's wife, Szmurlo asked MHC Owsley to contact her again to obtain more information.⁴³ MHC Owsley reported that Boggon's wife informed her that Boggon had no current or recent medical health treatment but had been admitted to University Hospital in Pensacola some thirty years earlier.⁴⁴ The woman to whom MHC Owsley spoke could not provide information about medications, if any, that Boggon had been taking prior to his arrest. She advised MHC Owsley that Boggon had been "fine" until a week previously, when he started staying up all night. MHC Owsley was also informed that Boggon had three personalities and hallucinated. Advised of this information by MHC Owsley, Szmurlo concluded that Boggon was suffering symptoms of psychosis.⁴⁵ MHC Owsley was also told that Boggon's family intended to post bond for him and take him to the Lakeview Center to have his mental health assessed. Based on her conversation with Boggon's wife and Szmurlo's instructions, MHC Owsley asked the Records Department at the Jail to place a notice in Boggon's file directing that he undergo Baker Act screening prior to any release on bond.⁴⁶

43 In August 2005 Szmurlo worked part-time at the ECJ. He usually was scheduled to work at the Jail on Tuesdays and Thursdays. On Tuesday, August 23rd, Szmurlo was on duty during the time Boggon was restrained in the chair. Doc. 240-7 at 11-12.

44 Doc. 176-3, Exh. 9 at 36-7.

45 Doc. 240-7 at 100-101.

46 See Fla. Stat. § 394.451, et seq. (setting forth the Florida procedure for involuntary commitment of persons who pose a danger to themselves or to others).

At 3:00 p.m. Burden reported that Boggon's blood pressure was 160/90 and his behavior was calm and pleasant.⁴⁷ Shortly thereafter Hankinson wheeled Boggon, who was still secured to the restraint chair, to Szmurlo's office. Hankinson believed that Boggon urgently needed to see Szmurlo for mental health care and, in any event, Boggon was scheduled for an appointment with Szmurlo sometime that day.⁴⁸ Boggon was not physically resisting at that time but had become "mouthy," cursing and stating "I don't want to deal with you doctors. Y'all are trying to poison me."⁴⁹ For "therapeutic" reasons Szmurlo was not inclined to speak with Boggon while he was being forcibly restrained.⁵⁰ To facilitate Szmurlo's contact with Boggon, Hankinson moved Boggon to a cell and, at approximately 3:15 p.m. — which was approximately six and one-half hours after Boggon had initially been placed in the chair — released him.⁵¹ At that time Szmurlo tried to speak with Boggon but Boggon refused, stating, "`I don't want any medicine. I don't want to talk to you. I refuse all medications. Get out [of] my room.'"⁵²

47 Id.

48 Doc. 176-5, Exh. 13 at 48-49.

49 Id. at 48.

50 Szmurlo testified that having a patient brought "against their will screaming to a psychiatrist in a chair . . . would pose problems establishing any form of an alliance with the patient, any form of a working relationship." Doc. 240-7 at 91-92.

51 Doc. 176-5, Exh. 13 at 48-49; doc. 179 at 16. The decision to release an inmate from the restraint chair is made by custody staff, not medical staff. Doc. 176-3, Exh. 10 at 6.

52 Doc. 179 at 25; doc. 176-5, exh. 13 at 48-49; doc. 240-7 at 94.

After his interaction with Boggon, Szmurlo spoke with Joseph Monastero, M.D., ⁵³ PHS' medical director at ECJ and Szmurlo's supervisor. Szmurlo advised Dr. Monastero of Boggon's mental condition, the presence of some abnormal vital signs, and Szmurlo's inability to provide mental health care because of Boggon's refusal. Szmurlo wanted Dr. Monastero to be aware of Boggon's situation because Szmurlo did not plan to return to work until the following Tuesday, August 30th, and he thought Boggon could require emergency treatment before that time.⁵⁴

53 Dr. Monastero is not named as a defendant in this case.

54 Doc. 240-7 at 96. Dr. Monastero testified at the Coroner's Inquest that he reviewed Boggon's medical records near the time of their creation, not after his death, and concluded that the reported blood pressures were not so severe as to constitute either hypertensive emergency or urgency. Doc. 173-3, Exh. 11 at 46.

In an entry in Boggon's medical records dated August 23, 2005, at 4:42 p.m. Szmurlo noted that Boggon had been agitated and had been openly masturbating while in Jail.⁵⁵ Per Boggon's wife, Boggon had received no treatment since his admission to University Hospital many years prior and in the previous week he had been agitated and unable to sleep. Also, according to Szmurlo's notes, Boggon refused to talk to him but Szmurlo intended to attempt to see Boggon the following week if Boggon would allow it. Earlier emergency treatment of Boggon, however, might be necessary. Szmurlo further noted that Boggon's blood pressure was not well controlled and that he had taken Thorazine⁵⁶ in the past. Additionally, Szmurlo's notes indicate that he had conferred with Dr. Monastero about Boggon. Szmurlo commented that if Boggon's medical condition permitted it, short-acting and then long-acting neuroleptic medications might be helpful in treating him. Given Boggon's cardiovascular profile, however, Szmurlo thought that the use of Thorazine posed an unwarranted risk. Szmurlo noted that he had ordered no medications for Boggon at that time.⁵⁷ Wednesday, August 24, 2005

55 Doc. 179 at 25.

56 Szmurlo testified that Thorazine is an antipsychotic medication. Doc. 240-7 at 104.

57 Szmurlo's notes also reflect that he gave no instructions regarding whether Boggon should be admitted to the Jail infirmary. According to Szmurlo's deposition testimony, however, Boggon "was in the infirmary. I had no reason to believe that he was not there as a patient." Doc. 240-7 at 107.

Shortly after midnight on the morning of August 24th Boggon began banging on his cell door and repeatedly yelling "`open the door.'"<sup>58</sup> Boggon refused to comply when ordered to stop this behavior, and he also picked up his cot and threw it on the floor. A supervisor determined that Boggon should be placed in the restraint chair to prevent him from injuring himself. Boggon voluntarily complied with the order to sit in the chair and restraints were affixed. At that time he was checked by defendant Gregory, a PHS registered nurse. Gregory noted that at 12:15 a.m. Boggon would not cooperate with having his vital signs taken and was agitated, screaming, cursing, and sweating.<sup>59</sup> Gregory checked Boggon again at 2:20 a.m., when she reported that he continued to curse and scream and that he was terrified he would be forced to have an injection. At 5:15 a.m Gregory again checked Boggon. He seemed less agitated but continued to have outbursts of cursing. Boggon refused to be touched or have his vital signs taken and declared, "`You're not going to give me a shot!'" When Gregory checked Boggon at 7:45 a.m., which was the last time Gregory saw Boggon on August 24th, he was more cooperative and quieter. He also asked to be released from the chair and allowed Gregory to take his blood pressure, which was 140/86.

58 Doc. 186-4 at 12-15.

59 Doc. 186-4 at 11.

Defendant Helms is a LPN who worked for PHS at the ECJ in August 2005. The morning of August 24, 2005, at 9:35 a.m., after Gregory went off duty, Helms checked Boggon and noted that he was quiet and cooperative. His blood pressure was 160/112. Helms also checked Boggon at 9:50 a.m., when he was released from the restraint chair. Boggon thus spent about nine and one-half hours in the restraint chair on August 24th. On both of the occasions that Helms examined Boggon on August 24th she offered him medication for his high blood pressure but he refused, indicating that he did not need and did not like medication.⁶⁰

60 Doc. 176-6, Exh. 20.

Defendant Lastinger is an ECSO deputy sheriff who was assigned to the ECJ in August 2005. At approximately 9:10 p.m. on August 24th Lastinger reported Boggon had been moved from the infirmary to the general population section of the Jail after being cleared by medical staff.⁶¹ In his new cell Boggon reportedly removed his clothes, sat with his fists clenched, and rocked back and forth. Boggon also urinated on himself. In response to this abnormal behavior Lastinger contacted the medical department and was informed by L. Whitlock that Boggon should be returned from general population and "readmitted" to the infirmary.⁶²

61 Doc. 186-4 at 16.

62 Smith contends that Boggon was never formally admitted to the infirmary as a patient but should have been, as he would have received medical monitoring there rather than simply security monitoring. Doc. 198 at 17. The nurses submit that as no order exists in Boggon's chart admitting him to the infirmary he likely was not ever formally admitted as a patient. They contend, however, that the record reflects that medical staff attempted to provide him with care and performed numerous medical checks. See doc. 176-1 at 16; doc. 186-4 at 16.

L. Whitlock was on duty when Boggon arrived back in the infirmary. She noted at 9:00 p.m. that Boggon had removed his clothes and was standing nude at the window in his room. He was talking gibberish, dancing around his room, and washing in the toilet. L. Whitlock noted on Boggon's chart that he would be monitored by Jail security staff while in the infirmary.

Thursday, August 25, 2005

At approximately 8:58 a.m. on August 25, 2005, a deputy discovered that Boggon had flooded his cell in the infirmary by continuously flushing the toilet after placing a roll of tissue in the bowl.⁶³ Boggon ignored the deputy's repeated orders to stop this activity and to sit on his bunk. Defendant Merritt, an ECSO deputy sheriff and supervisor at the Jail, was notified that Boggon was flooding his cell and responded to the infirmary, along with Driver and another deputy. When Driver arrived Boggon was still in his cell while inmate workers cleaned water from the hallway. Boggon exited his cell as ordered but then situated himself in a nearby corner and appeared ready to fight. He refused to sit in the restraint chair after being directed to do so by Merritt. Driver attempted to physically guide Boggon into the chair but Boggon resisted. Driver gave Boggon additional orders to sit in the chair, warning that he would use his taser if Boggon failed to comply.⁶⁴ With the atmosphere tense and Boggon continuing to refuse to sit in the chair, Driver deployed his taser. Two other deputies were then able to seat Boggon in the restraint chair and secure him. Driver left the area shortly thereafter and completed his report, which included details of the use of his taser. He noted the incident type as a "disturbance" involving a "mentally deranged" inmate who engaged in "physical resistance to a lawful command."⁶⁵ According to Driver's report, reactive force was used to effect a lawful command, restrain the inmate for his own safety, prevent property damage, and quell a disturbance.

63 Doc. 186-4 at 19-26.

64 Doc. 186-4 at 21. A taser gun set to deploy barbs "uses propelled wire to conduct energy to a remote target, thereby controlling and overriding the body's central nervous system. The taser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge. These probes are connected to the taser gun by high-voltage insulated wire. When the probes make contact with the target, the taser gun transmits electrical pulses along the wires and into the body of the target." Draper v. Reynolds, 369 F.3d 1270, 1273 n. 3 (11th Cir. 2004).

65 Doc. 186-4 at 23.

Smith disputes that Boggon was violent or resisted during the cell-flooding incident, pointing to the affidavit of former inmate James Skipper, who was incarcerated in the cell next to Boggon's on August 25, 2005. According to Mr. Skipper's affidavit, deputies "forced [Boggon] from his cell and tased him right in front of my cell. He was then forced into a restraint chair and put back in cell 260. This was done as punishment because he was not resisting in any way."⁶⁶

66 Doc. 207-2.

Helms examined Boggon following his placement in the restraint chair the morning of August 25th.⁶⁷ She noted that his blood pressure was 150/102, found no restriction in circulation or respiratory distress, and described Boggon as quiet. Helms also removed a taser barb from Boggon's mid-abdominal region. Helms checked Boggon again at 10:57 a.m., when she stated that he calm and quiet (blood pressure 128/100), and also at 12:55 p.m., when she noted he was moderately agitated (blood pressure 140/100). At 2:55 p.m., after Boggon had been in the restraint chair approximately six hours, Merritt ordered Boggon's release.

67 Doc. 186-4 at 18.

Within approximately thirty minutes of Boggon's release Merritt ordered him back into the restraint chair. Boggon reportedly had thrown the cot and mattress in his cell and refused to stop.⁶⁸ L. Whitlock was on duty at that time in the infirmary and she checked Boggon's vital signs several times: 3:30 p.m. (blood pressure 148/86); 7:00 p.m. (blood pressure 148/108); 9:00 p.m. (blood pressure 159/99); and 11:00 p.m. (blood pressure 174/85). In several of her reports L. Whitlock also noted that Boggon's circulation was satisfactory.⁶⁹ Merritt went off-duty at 7:00 p.m. and had no further involvement with Boggon during his detention at the ECJ.⁷⁰ At the conclusion of Merritt's shift on August 25th Boggon had been restrained in the chair approximately nine and one-half hours.

68 Doc. 186-4 at 28-31.

69 Id. at 27.

70 Doc. 186-20 at 9.

Friday, August 26, 2005

Boggon remained in the restraint chair into the early morning hours of August 26th. L. Whitlock checked Boggon and, when he permitted it, she took his vital signs. Her notes reflect the following: 1:00 a.m. (no vital signs taken), 3:00 a.m. (blood pressure 193/114), and 5:00 a.m. (blood pressure 184/104). L. Whitlock reported several times that Boggon's circulation was satisfactory. She also noted at 3:00 a.m. that a range of motion exercise had been completed by B. Whitlock, who is L. Whitlock's husband and a sergeant with the ECSO.

At approximately 6:00 a.m. on the 26th, defendant B. Whitlock decided to release Boggon from the restraint chair. Boggon by that time had been restrained nearly twenty-one hours since his placement in the device the previous morning. B. Whitlock then returned to his office. At approximately 6:13 a.m., which was less than fifteen minutes after his release from the chair, Boggon reportedly began to flood his cell again, this time using a styrofoam food tray stuffed into the toilet.⁷¹ When the deputy in charge attempted to stop this conduct, Boggon pushed by him and exited his cell, disregarding the deputy's commands to reenter. Two deputies then forced Boggon to the ground and a call went out for assistance. During the encounter Boggon was extremely combative and attempted to punch, bite, and spit. The deputies were able to return Boggon to his cell by dragging him by his ankles.

71 Doc. 186-4 at 33.

B. Whitlock rushed back to the infirmary when he heard the emergency call.⁷² When B. Whitlock entered Boggon's cell, the two deputies and Boggon were struggling on the floor. Boggon "started exploding and really resisting" by thrashing and trying to strike and bite when B. Whitlock moved in to assist in handcuffing Boggon.⁷³ The three deputies were able to affix one or both of the cuffs on Boggon's wrists but Boggon continued to resist vigorously. B. Whitlock then deployed his taser, which was set for direct contact stun rather than for the deployment of darts. The tasing appeared to have little effect on Boggon, and B. Whitlock "may have given him another short one right after — subsequent to that."⁷⁴ Boggon continued to struggle by twisting, kicking, and spitting. By this time the restraint chair had been returned to Boggon's cell. The deputies tried to place Boggon in the chair but he bucked, arched his back, kicked, and tossed his head in an effort to prevent them from doing so. In the course of this "very intense" struggle with Boggon, B. Whitlock delivered several "knee strikes" and other "empty-hand" controls to try to gain Boggon's compliance.⁷⁵ When these controls were not successful, B. Whitlock applied two additional "short" contact stuns with his taser, using a "drive-stun technique" intended to make Boggon pull away from the device and allow the chair's waist strap to be affixed.⁷⁶ The additional stuns were applied and the deputies were able to secure Boggon to the chair. Boggon had been spitting at the officers, so Lastinger stood behind the restraint chair and placed his "forearm under Boggon's chin and lifted up in an effort to keep his mouth shut."⁷⁷ Additionally, at various times during the incident B. Whitlock or Lastinger held a towel or pillow case in front of Boggon's face in order to shield the Jail staff while Boggon was being strapped to the chair.⁷⁸

72 Doc. 186-18 at 10.

73 Id. at 12.

74 B. Whitlock testified that the usual length of the taser stun is five seconds but that he did not want the device to deliver a stun of that length. Rather, he indicated that he wished to apply a stun of lesser duration because he was "trying just to use it at this point as pain compliance to get him to quit resisting us." Doc. 186-18 at 15-16.

75 Id. at 16, 23.

76 Id. at 15-17.

77 According to Smith, during the August 26th incident Lastinger fractured a part of Boggon's neck while employing a choke hold.See doc. 198 at 21; doc. 186-4 at 37. The autopsy report of medical examiner Andrea Minyard, M.D., reflects a finding of fracture of the thyroid cartilage. Dr. Minyard also noted, however, that postmortem extraction artifact, i.e., injury during the autopsy, could not be ruled out as the cause. Doc. 207-10 at 2.

78 Doc. 186-4 at 37; doc. 186-18 at 22.

After Boggon was restrained in the chair, L. Whitlock called Dr. Monastero for permission to administer PHS' "agitation protocol" to Boggon.⁷⁹ After Dr. Monastero authorized use of the protocol, L. Whitlock injected Boggon with 5 mg. of Haldol, 2 mg. of Ativan, and 50 mg. of Benadryl, with the expectation that the additional 5 mg of Haldol permitted under the protocol for a patient of Boggon's weight might be administered later if Boggon remained agitated.⁸⁰ Boggon calmed down after the first injection, however, and no additional Haldol was administered on August 26th.

79 Doc. 186-3; doc. 207-28. For a person of 145 pounds or more, the protocol recommends administering 10 mg. of the anti-psychotic medication Haldol and 2 mg. of the anti-anxiety medication Ativan. The protocol also includes administering 25 mg.of Benadryl, which is given to counteract any side effects of the other medications. The protocol may be given every hour for a maximum dose of 40 mg. Haldol and 8 mg. Ativan in a twenty-four hour period. Doc. 207-28; doc. 240-7 at 130. Szmurlo testified that although 25 mg. of Benadryl is called for under the agitation protocol, 50 mg. is commonly given and, according to Szmurlo, represents an increase that is "nonsignificant." Doc. 240-7 at 130.

80 L. Whitlock states that she reported in Boggon's medical records that she administered a full dose of Haldol, or 10mg., to Boggon on August 26, 2005, but that this was a clerical error on her part because she actually administered only a one-half dose. Doc. 176-3, Exh. 8 at 5.

L. Whitlock attempted to check Boggon while he was restrained in the chair once before her shift ended at 7:00 a.m. She noted that Boggon's circulation was satisfactory but that he would not permit her to take his vital signs.⁸¹ B. Whitlock's shift also ended at 7:00 a.m. but he remained at the Jail until approximately 8:30 a.m. to complete paperwork. Before departing the Jail, B. Whitlock placed a notice below the windows of Boggon's cell. The notice identified Boggon as a high risk inmate with pending charges of aggravated assault and criminal mischief; included the notation "mentally unstable, unpredictable, aggression toward staff"; and instructed that two officers were required in order to move him.⁸²

81 Doc. 173, Exh. 8 at 6.

82 Doc. 186-18 at 26.

Burden came on duty in the infirmary at 7:00 a.m. on August 26th.⁸³ At 8:30 a.m. Burden examined Boggon, who remained secured to the restraint chair, and noted that his blood pressure was 122/100. She described him as being calm, quiet, and in no apparent distress. At 10:30 a.m. Boggon's blood pressure was 130/86 and he was again described as being in no apparent distress. Burden noted Boggon's blood pressure at 12:30 p.m. (140/90) and that he had eaten and appeared quiet and calm. At 2:10 p.m. Burden documented Boggon's blood pressure (136/80) and reported that he was in no apparent distress. At 4:50 p.m. Burden recorded Boggon's blood pressure (160/90) and noted that he was awake, alert, and calm. Burden reported that at 6:00 p.m. Boggon's blood pressure was 158/106 and he was calm and quiet. At 6:20 p.m. Boggon was removed from the restraint chair. At that time Boggon had been restrained in the chair for approximately thirty-two of the previous thirty-three hours and, since the morning of August 23rd, had spent a total of more than forty-eight hours in the restraint chair.

83 Doc. 186-4 at 32.

Saturday, August 27, 2005

There appear to be no entries on Boggon's medical, mental health, or detention records for August 27, 2005. Burden was on duty on August 27th in the infirmary and recalled that Boggon was quiet and pleasant that day.⁸⁴ Burden also noted that she saw a deputy take Boggon out of his cell and down the hall to take a shower without any problems.⁸⁵

84 Doc. 176-6, Exh. 15 at 5.

85 Id.

Hankinson testified that during the evening hours of August 27th Boggon caused a disruption in the infirmary by beating and banging on his cell door.⁸⁶ Kimberly Cox, Boggon's great-niece and a detention deputy at the ECJ, called Hankinson at approximately 8:00 p.m. on the 27th to see if she could visit Boggon.⁸⁷ Although Jail personnel ordinarily are not accorded any special privileges to visit relatives who are incarcerated at the ECJ, Hankinson gave Deputy Cox permission to come to the infirmary that evening because Hankinson hoped it might help to calm Boggon.⁸⁸

Sunday, August 28, 2005

86 Doc. 176-5, Exh. 13 at 52.

87 Doc. 207-7 at 47; doc. 176-5, Exh. 13 at 52. According to Smith, throughout his detention Boggon's family repeatedly called or came to the Jail and requested to visit him but were not allowed to do so.

88 Doc. 176-5, Exh. 13 at 52.

Gregory reported at approximately 1:00 a.m. on August 28th that Boggon had been "standing for long periods in [his] room in various places and poses" and that his gait had been unsteady. Also, after staggering into the middle of the cell he had fallen slowly to the ground in an exaggerated manner until he reached the floor. He then curled into the fetal position and inched himself against the wall until he was close to the door, which he began to kick.⁸⁹ Hankinson also reported that at approximately 1:00 a.m., after he had spoken to Deputy Cox, Boggon began beating and banging on the door of his cell and refused to stop.⁹⁰ Hankinson went to Boggon's cell and found him lying on the floor, kicking the door with his left foot. Boggon refused to stop when directed to do so, and he began cursing and screaming. Hankinson called for the security support team and the restraint chair.

89 Doc. 186-3 at 21.

90 Doc. 186-4 at 42.

Hankinson noticed that Boggon's foot was swollen and, after Gregory examined the foot, stated to Boggon, "`Look, you're hurting yourself." Hankinson also stated, "`You can't continue doing this. I need you to sit in the restraint chair.'"⁹¹ When told to get in the restraint chair, Boggon crawled through the cell door. At first he was unresponsive to orders but then he attempted to stand.⁹² Boggon was unable to rise, however, apparently because of his injured foot. The officers helped him into the restraint chair and affixed the straps without incident.⁹³ Gregory checked Boggon's vital signs and noted that his blood pressure was 140/82 and the restraints were nonrestrictive to respiration and circulation; Boggon appeared to be in no apparent distress.⁹⁴ Gregory reported that once inside the cell and seated in the chair, Boggon began to open his eyes, push against the restraints, stick his tongue out, and smile.⁹⁵

91 Doc. 176-5, Exh. 13 at 54.

92 Doc. 186-3 at 21.

93 Doc. 176, Exh. 13 at 54.

94 Doc. 186-4 at 41.

95 Doc. 186-3 at 21.

Deputy Cox arrived in the infirmary after Boggon had been placed in the restraint chair and entered Boggon's cell.⁹⁶ Addressing Deputy Cox by her nickname, Boggon stated, "`Pumpkin, these people are trying to kill me.'"<sup>97</sup> Deputy Cox told him that was not true and asked him to tell her why he had been "acting out." Boggon replied that he had asked persons in the Jail "[w]hat am I in here for and ain't nobody wanting to tell me."<sup>98</sup> Deputy Cox advised Boggon that she would return in the morning. She also told Boggon that he should talk with the mental health staff if he was "going through something" because he would not be released until he had received treatment since "people think you're crazy."<sup>99</sup> Deputy Cox then departed the cell and spoke with Hankinson and Gregory. Deputy Cox told Gregory that Boggon was afraid of law enforcement officers and had experienced a traumatic life event after which he was not the same. She also gave Gregory some personal information about Boggon, including that he enjoyed wearing cowboy-style clothes and had been a truck driver.<sup>100</sup> Deputy Cox told Hankinson that Boggon had been involved in an altercation in the past which resulted in Boggon's being arrested and charged with murder. He had been extremely fearful of law enforcement officers ever since.<sup>101</sup> Expressing concern about Boggon and noting that his bond had been set, Hankinson suggested to Deputy Cox that she take steps to "`get him out of here because I don't want your uncle to get hurt and I don't want no officer to get hurt either.'"¹⁰²

96 Doc. 207-7 at 49.

97 Id.

98 Doc. 207-7 at 50.

99 Id.

100 Doc. 176-6, Exh. 17 at 4.

101 Doc. 176-5 at 51-52.

102 Id. at 52-53.

Based on the taser marks Deputy Cox had observed on Boggon, it appeared to her that Boggon "had been tased one too many times."¹⁰³ Deputy Cox did not raise her concerns about excessive tasing with Gregory or Hankinson, however. She instead determined that the following day she would speak with one of the "big supervisors" at the Jail and someone in the mental health department to see if she could get Boggon released.¹⁰⁴ After speaking with Hankinson and Gregory, Deputy Cox returned to her post, passing a mental health counselor as she left the infirmary without speaking to him about Boggon. After completing her shift Deputy Cox went home and fell asleep. At the time she felt no qualms about leaving Boggon in the care of the officers and medical personnel at the Jail because, having worked there for six years, Deputy Cox had no real concern that staff members were not doing their jobs properly.¹⁰⁵

103 Id. at 61.

104 Id. at 69.

105 The next day, August 29th, Hurricane Katrina made landfall along the Gulf Coast. Given the exigent circumstances caused by the storm in the Pensacola area, including some loss of electrical power and telephone service, Deputy Cox did not take any action to facilitate Boggon's release as she "didn't feel [his situation] was life threatening at that moment. I figured it could wait one more day." Id. at 69-70. Deputy Cox testified that she was devastated by Boggon's death and lamented her decision to wait to take action on Boggon's behalf. Id. at 68. According to Deputy Cox, "that's why I beat myself up so bad when this happened because, I mean you can't get no better than somebody passing you — and you know you could have said something to him, but you was just like `wait.'" Id. at 68.

During the time Boggon was restrained in the chair on August 28th Hankinson tried to check on him approximately every hour.¹⁰⁶ Gregory checked on Boggon at 3:20 a.m., noting that his blood pressure was 142/86. Gregory attempted to make a personal connection with Boggon using some of the information relayed by Deputy Cox but Boggon was not responsive.¹⁰⁷ Gregory advised Hankinson that Boggon had spit on her, but she declined to press charges against Boggon. Gregory noted at 5:05 a.m. that Boggon's blood pressure was 140/88 and that he was quiet but would not open his eyes. Boggan was released from the chair at 6:20 a.m., at which time Gregory recorded that his blood pressure was 142/80 and that he had no injuries related to placement in the restraint chair. Boggon spent approximately five and one-half hours in the restraint chair on August 28th, bringing the total number of hours that he had been confined in the chair since August 23rd to approximately fifty-four.

106 Doc. 176-5, Exh. 13 at 82.

107 Doc. 176-6, Exh. 17 at 5.

Monday, August 29, 2005

Numerous facts relating to what transpired in the ECJ infirmary on August 29, 2005, the date of Boggon's death, are disputed. According to defendants, the following events took place:

Sometime around 4:00 p.m. Boggon was observed attempting to flood his cell by putting a food tray in the toilet. Lastinger was contacted and responded. He decided to enter Boggon's cell to retrieve the tray because Boggon was not responsive to commands. Opening the cell door, Lastinger told Boggon to step back but Boggon refused, at some point stating to Lastinger, "`I'll get you'" and taking an aggressive stance and clenching his fists. Believing Boggon was about to strike him, Lastinger sprayed Boggon in the face with pepper foam and pushed him backwards into the cell with his open hand so that he could enter. Boggon fell to the floor.¹⁰⁸

108 Doc. 186-19 at 2-4, 5-6.

Pursuant to ECJ protocol following the use of pepper foam, Boggon was taken to the shower for the purpose of decontamination. Boggon was walked down the hallway towards the showers under the control of Lastinger and another deputy. B. Whitlock stood by a short distance away in case he was needed, but he did not directly participate in the move.¹⁰⁹ The officers expected Boggon to wash the pepper foam residue from his face but he did not. Instead, he removed his jumpsuit and began yelling and shouting. He also beat and kicked the door and spit on the cell window.¹¹⁰ In order to effect the decontamination procedure, a deputy used a long-handled scrub brush to reach inside the shower to the controls and activate the flow of water. The deputy then showered Boggon using a baby shampoo solution, including scrubbing the pepper foam residue from Boggon's hair.¹¹¹

109 Doc. 186-18 at 28, 30.

110 Doc. 186-5 at 3; doc. 186-19 at 7-8.

111 Doc. 186-5 at 3.

On August 29th electrical power in the infirmary was being supplied by a generator due to conditions in Pensacola caused by Hurricane Katrina. As a result of limited power, lighting in the infirmary was reduced and there were no lights in the showers. B. Whitlock used a flashlight to help illuminate the shower area while Boggon was being decontaminated. The flashlight was a high powered device with three settings from low to high intensity: the light ranged from a lower power LED bright light/bluish light in the first position to a high intensity LED light in the second position. In the third position it engaged a xenon bulb which provided a white, long-distance type of light.¹¹² After using the flashlight to assist in Boggon's decontamination B. Whitlock returned to the officer's module, which was close by. He called defendant Sherrie Day, a ECSO lieutenant who worked at the ECJ, for authorization to place Boggon in the restraint chair so that he could be cleaned more thoroughly.¹¹³ After the conversation B. Whitlock then returned to the shower area. Shortly thereafter Day also arrived in the shower area.¹¹⁴

112 Id. at 4.

113 Doc. 186-18 at 36.

114 Id. at 37-38.

The deputies conferred and decided how best to effect Boggon's placement in the chair. B. Whitlock went back to the module and got a clear, non-operative flexon shield to use as a spit shield or barricade if Boggon attempted to run.¹¹⁵ With Day overseeing the operation, the door to the shower in which Boggon had been placed was then opened. The deputies were able to remove the still nude Boggon from the shower cell, seat him in the chair, and secure at least one of the restraint chair's straps, thus precluding Boggon from bolting. While Boggon continued to flail his arms and kick, Lastinger placed a pillowcase in front of Boggon's face or over his head to protect the officers from his spitting.¹¹⁶ Because Boggon was at least partially secured B. Whitlock no longer needed the stun shield to keep Boggon from running or spitting. He therefore put the shield down and directed another deputy to secure it in the nearby officer's module.¹¹⁷ According to the defendants, the stun shield was not used to control Boggon nor was any taser deployed against him on August 29, 2005.¹¹⁸ After relieving himself of the stun shield, B. Whitlock assisted with securing Boggon to the chair. When Boggon resisted the placement of his hand in the right wrist strap, B. Whitlock deployed a deflection strike to the radial nerve of Boggon's arm, his only physical contact with Boggon on August 29th. After B. Whitlock applied the open-hand control, Boggon let go and B. Whitlock was able to secure the strap. Once Boggon was secured, he was wheeled in the chair to a larger shower stall which had an extended, flexible hose and shower head that permitted the holder to direct water to particular areas. B. Whitlock returned to the officers' module, and Lastinger and another deputy then washed Boggon.

115 Id. at 38; doc. 186-14 at 15.

116 Doc. 186-13 at 4-5.

117 Doc. 186-18 at 37-40.

118 Doc. 186-11.

Following his shower Boggon was wheeled back to his cell, still secured to the restraint chair. The chair was situated so that Boggon's back was to the door and he faced the windows opposite.¹¹⁹ At that time the towel or pillowcase remained positioned over Boggon's face so that he could not spit.¹²⁰ Boggon was placed into the chair at 4:40 p.m.¹²¹ During her 4:40 p.m. initial check Helms noted that Boggon was suffering no respiratory or circulatory distress due to the restraints. She also noted that she was unable to take Boggon's vital signs at that time because he was uncooperative.

119 Doc. 186-13 at 7-8.

120 The record is not clear as to when, if ever, the pillowcase or towel covering Boggon's head was removed.

121 Helms states that she erroneously reported the time-in on the Restraint Chair Run Sheet as 1440 hours when the actual time was 4:40 p.m. Similarly, her second check was actually at 6:40 p.m. rather than 1640 hours. Doc. 176-6, Exh. 20 at 6.

Helms had observed Boggon repeatedly hitting his head against the wall while he was in the smaller cell shower. According to Helms, Lastinger asked her if she could administer the agitation protocol to manage Boggon's agitation and prevent him from harming himself and others. Helms agreed and, sometime between 4:40 p.m. and 5:00 p.m., she gave Boggon two injections, one containing 2 mg. of Ativan and the other containing a combination of 10 mg. of Haldol and 50 mg of Benadryl. Lastinger, B. Whitlock, and Day witnessed the administration of the injections.¹²² Helms proceeded with the treatment without first contacting a physician. Helms felt Boggon's behavior created the risk of imminent danger to himself and others. Additionally, under the protocol Helms was authorized to act during an emergency, which she believed existed because no physician was on-site at the time due to the approach of Hurricane Katrina. Helms also believed that telephone service was impaired and that she would be unable to call a physician.¹²³

122 After observing Helms give Boggon the agitation protocol, Lastinger and B. Whitlock did not see Boggon during the rest of their shifts, which ended at 7:00 p.m. Doc. 186-19 at 9-10; 186-18 at 45. Day went off duty at approximately 7:15 p.m. and checked on Boggon until that time by staying in the infirmary for approximately thirty to forty-five minutes after the protocol was administered. She also checked on him by calling other officers, who advised her that he remained agitated. Doc. 186-13 at 11-12.

123 Helms acknowledged that later that evening, after she had gone home for the day, she was contacted by Jail personnel — by telephone — and told to return because Boggon had died.

At 5:00 p.m., a deputy performed a visual check of Boggon. The deputy testified that he recalled Boggon turned and looked around to see who was at his door.¹²⁴ At 6:00 p.m. another deputy performed a visual check of Boggon. She testified that she saw Boggon move his head and specifically recalled that he was alive at that time.¹²⁵

124 Doc. 186-5.

125 Doc. 186-8.

Helms checked Boggon again at 6:40 p.m. She noted no respiratory or circulatory distress but documented no vital signs as Boggon did not permit her to take them. Boggon appeared to be fine although slightly angry about being placed in the restraint chair.¹²⁶ Helms went off duty at 7:00 p.m. During the shift change Helms informed L. Whitlock that she had administered the agitation protocol.

126 Doc. 176-6, Exh. 20.

At 7:00 p.m. a deputy checked Boggon. According to the deputy's testimony, she saw Boggon move his head and specifically recalled that he was alive.¹²⁷ Boggon was visually checked again at 8:00 p.m. The deputy who performed the check testified that he saw Boggon moving and that he was "obviously alive."¹²⁸ At 8:30 p.m., the same deputy accompanied L. Whitlock into Boggon's cell so that she could check Boggon's vital signs and restraints. According to the deputy, he draped a towel over Boggon's mouth so that he could not spit on L. Whitlock as she checked his vital signs. Boggon was moving and responsive at that time. With respect to the 8:30 p.m. medical check L. Whitlock reported that Boggon's blood pressure was 184/105, his pulse was 79, and his respirations were 16. She noted no restrictions to circulation. L. Whitlock also recalled that detention deputies checked Boggon on an hourly basis during this time.¹²⁹

127 Doc. 186-8.

128 Doc. 186-7.

129 Doc. 176-3, Exh. 8.

At 9:00 p.m. and at 10:00 p.m. a deputy conducted hourly visual checks of Boggon. The deputy testified that Boggon was alive during both of the visual checks.¹³⁰ Between 9:45 p.m. and 10:45 p.m. a LPN walked by Boggon's cell and observed him move his head several times. The LPN also noted no towel or pillow case covering Boggon's head.¹³¹ Also, at approximately 10:00 p.m. to 10:15 p.m. an ECSO deputy entered the infirmary and stood near Boggon's cell. The officer observed Boggon look over his left shoulder.¹³² The officer also noted that Boggon did not appear to be in distress and made no sounds. The officer did not observe a pillow case or towel on Boggon's head.¹³³ At 10:25 p.m. an identification check and headcount were conducted prior to lights out. The deputy who conducted the check opened Boggon's cell door and looked in. He testified that Boggon was moving and alive at that time.¹³⁴

130 Doc. 186-10.

131 Doc. 176-7, Exh. 21 at 4.

132 Id., Exh. 22 at 4.

133 Id.

134 Doc. 186-7.

At approximately 10:50 p.m. a deputy entered Boggon's cell with L. Whitlock so that L. Whitlock could conduct a medical evaluation of Boggon. Boggon was unresponsive, with no respiration or heart rate. Emergency medical services were notified and an ambulance was summoned. Boggon was moved to the floor, and L. Whitlock, assisted by several deputies, performed cardiopulmonary resuscitation until the ambulance arrived. L. Whitlock also prepared but did not activate the automatic external defibrillator. After EMS personnel arrived, they examined Boggon and pronounced him dead at approximately 11:05 p.m.¹³⁵

135 Doc. 186-10.

Smith disputes much of the defendants' version of events of August 29, 2005. She asserts the following sequence of events occurred:

On the afternoon of August 29, 2005, Driver and Lastinger went to the infirmary. One of the inmate witnesses, Mr. Ramsey, heard Driver state that it was time to give Boggon "`some attitude adjustment'" and he saw Driver pepper foam Boggon in the face.¹³⁶ Boggon was then moved to a shower. B. Whitlock refused to order Boggon into the restraint chair in order that he could be forcibly showered so Day, as the highest level supervisor on the scene, gave the order.¹³⁷ Boggon was strapped in the restraint chair, then moved to a larger shower, where he was washed by a deputy with a long-handled, nylon-bristled scrub brush and baby shampoo solution. Inmates Ramsey, Skipper, Slater, and Coleman saw several flashes of bright light emanate from the shower cell during this time. They described the light as illuminating the entire wall and having the appearance of lightning. The witnesses testified that they believed the flashes of light came from the deputies' tasing Boggan.¹³⁸ According to the inmates, they could hear Boggan scream several times and they also heard Day laughing.¹³⁹

136 Mr. Ramsey stated in his affidavit that he recognized Driver as one of the two deputies who came to the infirmary after 4:00 p.m. on August 29, 2005. Doc. 207-3.
Driver, however, asserts that he left the Jail at 4:00 p.m. on August 29, 2005, and he submits a copy of his timecard in support of that assertion. Doc. 197-2. Smith also asserts that B. Whitlock testified that Driver was recalled to the Jail sometime on August 29th due to the need for certain essential personnel on premises during the approaching hurricane. Smith failed, however, to supply the relevant deposition excerpts in support of that contention.

137 Doc. 186-18 at 36.

138 Docs. 207-2, 207-3, 207-4, and 267-2. In somewhat confusing testimony at the Coroner's Inquest, Mr. Skipper also suggested that he saw "sparks" fly while Boggon was in the shower, which Mr. Skipper attributed to use of the stun shield. Doc. 176-7, Exh. 23 at 16-35.

139 Docs. 207-2 and 207-3.

During the time that Boggon was in the shower area, B. Whitlock had a stun shield and Lastinger, Driver, and Day all carried tasers. B. Whitlock and others testified that the stun shield was not operative but, when tested by the Florida Department of Law Enforcement ("FDLE") in the course of investigating Boggon's death, a charge from the shield was detected. Furthermore, Helms testified that the shield had been demonstrated for her sometime after she started working at the Jail in 2003 and she recognized the distinctive sound it made when fired.¹⁴⁰ Helms also testified that the light in the shower cell in which Boggon was initially placed was on at the time.¹⁴¹ Additionally, according to Smith, FDLE photographs taken on August 29th show that the lights were on.¹⁴²

140 Doc. 240-2 at 82-83.

141 Id. at 68.

142 Thus Smith submits that there was no need to use flashlights to illuminate the shower area and that the flashes of light seen by the inmate witnesses were tasers and/or the stun shield being activated.

At approximately 4:00 p.m. Lastinger brought Boggan back to his cell, with Boggan still strapped into the restraint chair and with something covering his head. Boggon's head was slumped to one side. Boggon, who was not moving or talking, was placed in the room with his face towards the rear wall.¹⁴³ Lastinger asked Helms to medicate Boggon and Helms agreed. Without attempting to consult a physician, Helms administered the same dose of Ativan, Benadryl and Haldol that Dr. Monastero had authorized several days previously.

143 Docs. 207-2 and 207-3.

Inmates Ramsey and Skipper were concerned about Boggon and, as a pretext for leaving their cells, asked for permission to use the telephone. Each looked into Boggan's cell as he passed by on his way to the telephone and saw that Boggan's head was still slumped to the same side it had been when he was placed in the cell. Boggon was not moving or talking. The inmates testified that from about 4:00 p.m. until about 11:00 p.m. no one ever checked on Boggon.¹⁴⁴ Additionally, they never heard Boggon move or talk after coming back to the cell from the shower. Inmates Ramsey, Skipper, and Slater testified that they believe Boggon was already dead at the time he was returned to his cell.

144 In testimony given during the Coroner's Inquest, however, Mr. Skipper testified that security officers checked Boggon at 7:00 p.m., 8:00 p.m., and 9:00 p.m. on August 29, 2007. Doc. 176-7 at 333-34.

L. Whitlock found Boggon unresponsive at about 10:50 p.m. and requested assistance from EMS. The EMS run sheet, which was prepared by the EMTS who attended Boggon that evening, reports that the EMTs arrived on the scene at 10:59 p.m. and examined Boggon at 11:00 p.m.¹⁴⁵ They found that Boggon had no pulse, his pupils were dilated and nonreactive, and his body was cold to the touch centrally and in all extremities, with early rigor mortis commencing.¹⁴⁶ The paramedics called the hospital emergency room to advise of their findings, then pronounced Boggon dead at 11:22 p.m.

145 Doc. 207-25; doc. 207-5, Exh. 1.

146 Doc. 207-25. The EMS run sheet also reflects a finding of multiple small punctures on the abdomen and chest of the body. Additionally, in their depositions both of the attending EMTs recalled seeing numerous marks on Boggon's torso, perhaps ten or more, which they described as being similar to taser barb wounds. Doc. 207-5 at 27-28; doc. 207-6 at 20-25. According to Smith, none of these wounds appear on photographs taken of Boggon on August 25th and 26th, the only dates on which the defendants submit Boggon was tased. If the photographs have been submitted in connection with the instant motions the court could not locate them.
Dr. Minyard testified that during the postmortem of Boggon's body she found marks that she thought were self-inflicted scratches. Dr. Minyard acknowledged, however, that at the time of the procedure she was not looking for evidence of taser wounds, as she had been informed that Boggon had not been tased for several days prior to his death on August 29th. Doc. 207-8 at 23-26.

Cause of Death

The parties also disagree regarding the cause or causes of Boggon's death. Driver, Hankinson, Merritt, B. Whitlock, and Lastinger cite the report of Dr. Minyard. She identified the cause of death as "combined defects of arteriosclerotic and hypertensive cardiovascular disease and paranoid schizophrenia." Contributing causes were identified as "restraint in a chair and haloperidol injections."¹⁴⁷ Dr. Minyard ruled the manner of death a homicide, meaning death at the hands of another. The deputies additionally rely on the report of forensic pathologist Kris L. Sperry, M. D., who likewise ruled the death a homicide and generally agreed with causes of death listed by Dr. Minyard.¹⁴⁸ Dr. Sperry did not agree with Dr. Minyard that haloperiodal was a contributing factor of Boggon's death but concurred that the restraint chair could have been a contributing factor. Helms, Gregory, Burden, and L. Whitlock cite Dr. Minyard's report as well as the report of Kim Klancke, M.D.¹⁴⁹ Dr. Klancke opined that Boggon had a sudden arrhythmic cardiac death due to agitation in the setting of hypertensive and atherosclerotic cardiovascular disease.

147 Dr. Minyard testified that she included haloperidol as a contributing cause of death because it had been administered by a nurse without the approval of a physician. She also stated that had she known that there was a standing order for the administration of haloperiodol in emergency situations, her opinion that the drug contributed to the cause of death would have been different. Doc. 207-8 at 44-49.

148 Doc. 176-12, Exh. 35.

149 Doc. 176-12, Exh. 32.

Smith likewise references Dr. Minyard's report and Dr. Sperry's conclusion that the restraint chair could be a contributing cause of Boggon's death but she primarily relies on the report of her expert forensic pathologist Michael E. Berkland, D. O.¹⁵⁰ Dr. Berkland, who performed a private autopsy on the body, also ruled Boggon's death a homicide. He listed the causes of death as "Multifactorial with Tamer/Stun Shield Use, Prolonged Incarceration in Restraint Chair, and Recent Haloperidol Injection" with contributing causes of "Clinical History of Paranoid Schizophrenia [and] Atherosclerotic Cardiovascular Disease."

150 Doc. 176-9 through doc. 176-11.

Expert and Other Testimony

The nurses rely on the expert testimony of Susan Dean, R.N.¹⁵¹ In Ms. Dean's opinion, Boggon's medical records do not reflect the presence of any medical emergencies that would have required his removal from the restraint chair. Ms. Dean also opined that the care the nurse defendants provided to Boggon did not cause him injury. The nurses also cite the testimony of psychiatrist Umesh Mhatre, M.D., who testified that the use of Haldol was appropriate for Boggon and that the nurses appropriately monitored Boggon as required by ECSO policy. Szmurlo relies on the expert testimony of Richard A. Greer, M.D. Dr. Greer opined that the care Szmurlo provided to Boggon did not fall below a professional standard of care and that Szmurlo justifiably relied on the medical plan he outlined for Boggon.¹⁵²

151 Doc. 176-12, Exh. 33.

152 Doc. 181, Exh. 7.

PHS has supplied the affidavit of Carl Dell, the Health Services Administrator at the Jail in August 2005. Included with Mr. Dell's affidavit are numerous documents outlining PHS policies and procedures used at the Jail infirmary which he and Dr. Monastero authorized. Mr. Dell also was responsible for training PHS medical staff at the Jail. Mr. Dell stated that prior to Boggon's incarceration he was not aware of any "adverse concern as to the quality of the medical or mental health care" provided to inmates at the Jail.¹⁵³ Additionally, Mr. Dell testified that there "were never any complaints as to the quality of the health care received from inmates who were placed in the restraint chair" and "no known incidents of serious injury or death from a restraint chair at the Escambia County Jail."¹⁵⁴ McNesby relies on the affidavit of Dennis Williams, the Director of Detention at the ECJ in August 2005. Mr. Williams testified that in August 2005 handcuffs, leg irons, and/or the restraint chair were the only restraint methods available at the Jail to control aggressive, violent, or disruptive inmates.¹⁵⁵ According to Mr. Williams, the restraint chair was the least restrictive but most effective method to restrain inmates who needed to be restrained for their safety or the safety of others, or to ensure the safe and secure operation of the Jail. In August 2005 it was the policy at the Jail to hold an inmate in the restraint chair until a supervisor determined that he was sufficiently calm to be returned to his housing area. This determination could be made by the direct observation of the supervisor or the report of a detention deputy to a supervisor. The inmate could also be released at his own request, coupled with his verbal assurance that he would behave.

153 Doc. 176-2, Exh. 4.

154 Id.

155 Doc. 186-9.

McNesby states in his affidavit he has no knowledge that Jail detention deputies have placed any inmate in the restraint chair without a proper basis for doing so. He also denies knowledge of any policy of the ECSO has resulted in widespread abuse of the restraint chair or the need for additional or different training for ECSO detention deputies in the use of the chair.¹⁵⁶

156 Doc. 186-2.

Discussion

A § 1983 plaintiff is required to show that he was deprived of a right secured by the Constitution or laws of the United States, and that the person who committed the alleged deprivation acted under color of state law. See Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003);Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). In this case, there is no dispute that each of the defendants acted under color of state law.

Additionally, because Boggon was a pretrial detainee rather than a convicted prisoner at the time of the events giving rise to this action, his claims do not arise under the Eighth Amendment but rather under the Fourteenth Amendment. See Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Lumley v. City of Dade City, Florida, 327 F.3d 1186, 1196 (11th Cir. 2003). For purposes of reviewing Smith's claims, however, there is no meaningful difference between the analysis required by the Fourteenth Amendment and that required by the Eighth Amendment.See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996); Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985). The court therefore analyzes Smith's claims under the decisional law of both amendments. See Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n. 6 (11th Cir. 1997).

Defendants Driver, Hankinson, Merritt, B. Whitlock, Lastinger, Day, Burden, Helms, Gregory, L. Whitlock, and Szmurlo

The Parties' Contentions

In Count I and Counts III through VI of her second amended complaint Smith alleges that use of the restraint chair to control Boggon by Driver, Hankinson, Merritt, B. Whitlock, and Lastinger constituted cruel and unusual punishment.¹⁵⁷ In Counts VIII through X Smith asserts that Driver, B. Whitlock, and Lastinger employed excessive force against Boggon through their use of the taser, the stun shield, and pepper foam. Smith asserts in Count VII that Day failed to intervene in the deputies' use of excessive force the day of Boggon's death. Smith alleges in Counts XI through XVI that Burden, Helms, Gregory, and L. Whitlock acted with deliberate indifference towards Boggon because each was aware that he suffered from mental illness and had been placed in the restraint chair and/or tased yet failed to seek or provide appropriate medical treatment for him or request his release from the chair. Count XVII names Szmurlo as the sole defendant and alleges his deliberate indifference to Boggon's known serious medical needs through his refusal to treat or examine Boggon.

157 Smith has grouped the nineteen counts of her second amended complaint together based on the nature of the claim. Within those groupings she has numbered the counts chronologically according to the date[s] she alleges each claim arose. For the sake of simplicity and consistency, the court has generally organized its discussion of the claims by date. The court also notes that in this order Smith's ninth claim, even though it is misnumbered as Count XIV in the complaint, is treated as Count IX.

By joint motion the deputies move for summary judgment on the basis of qualified immunity. They maintain that no constitutional violations occurred because any force applied to Boggon was used in a good faith effort to prevent him "from harming himself or others and to control his aggressive, violent and disruptive behavior . . ." and not maliciously or sadistically for the very purpose of causing him harm.¹⁵⁸ In response, Smith argues that any supervisor who made the decision to place Boggon in the restraint chair but failed to assess hourly whether Boggon could be released, as required by ECSO General Order 819.0.7.8.9, in effect subjected Boggon to punishment that amounted to the unlawful use of excessive force. Additionally, Smith contends that Driver admits tasing Boggon on August 25th and that an issue of fact exists as to whether Boggon engaged in conduct that warranted the use of any force. Finally, Smith argues that the court should find that genuine issues of material fact exist with respect to B. Whitlock and Lastinger's use of the taser, stun shield, pepper foam, and restraint chair on August 29th to control Boggon, and thus the court should also conclude that jury issues exist regarding whether Day failed to intervene and stop the deputies' unlawful conduct.

158 Doc. 185 at 4.

In individual motions the nurses also seek summary judgment. Making similar arguments, each contends that Smith has failed to show that Boggon had a serious medical need and that even if he did have such a need, there is no evidence that any defendant knew of it yet purposely failed to respond appropriately. Smith responds that Boggon's symptoms of mental illness were so severe that even a lay person could see that he suffered from a serious medical need. Moreover, Smith argues, each of the defendant nurses not only was aware of Boggon's mental illness but failed to act on this knowledge by notifying mental health department staff of Boggon's need for immediate treatment. Smith also submits that the acts or omissions of the nurses were the proximate cause of Boggon's spending many hours in the restraint chair, being tased, and, ultimately, his death.

Szmurlo also seeks summary judgment. According to Szmurlo, the medical record reflects that he attempted to meet with Boggon and evaluate him, assessed his condition to the extent possible, and consulted with Dr. Monastero regarding Boggon's needs. Szmurlo therefore contends that the limited care he provided to Boggon did not deviate from accepted professional standards and thus he did not act with deliberate indifference. In response, Smith contends, among other things, that Szmurlo should have but failed to admit Boggon to the infirmary, obtain Boggon's prior psychiatric records, facilitate a meeting with Boggon's family, or determine why Boggon had been placed in the restraint chair. According to Smith, such acts or omissions by Szmurlo demonstrate his deliberate indifference to Boggon's needs.

Nature of Smith's Claims Against the Deputies

As noted previously, the deputies characterize the claims against them as alleging the use of excessive force and failure to intervene in the use of such force. Without objection, Smith has commented on and responded to the deputies' reliance on the primary legal theory of the use of excessive force. Based upon the language employed in the heading and text of the pertinent counts of the second amended complaint, however, the court reads Count I and Counts III through VI as arguably asserting conditions of confinement claims.¹⁵⁹ To fully address the claims and resolve any ambiguity between the complaint and the parties' arguments in their memoranda, the court will analyze Smith's allegations under both the standard for excessive force claims and for conditions of confinement claims.¹⁶⁰ In so doing, the court notes that it does not infer any new claims. Rather, it simply addresses claims that it finds are adequately alleged on the face of the second amended complaint. See Lepone-Dempsey v. Carroll County Commission, 159 Fed. Appx. 916, 918 n. 4 (11th Cir. 2005) (finding no reversible error in district court's determination that a claim of unlawful arrest was sufficiently alleged on the face of the complaint and expressing no concern that the court had improperly created or identified a new claim); cf. GJR Investments, Inc., 132 F.3d at 1367-69 (finding district court erred by divining an equal protection claim from the complaint when the plaintiff did not allege unequal treatment or discriminatory motive).

159 The headings of these counts identify them as alleging "cruel and unusual punishment," in contrast to the complaint's other headings pertaining to the deputies that specifically allege the use of excessive force and failure to intervene. Additionally, in Count I and Counts III through VI Smith alleges that the deputies' actions were intended to punish Boggon and denied him "the minimal civilized measure of life's necessities. . . ." Doc. 99 at 11-17.
The allegation regarding punishment arguably implies reliance on the reasonable relationship test set out in Bell, 441 U.S. at 539. This test provides that a restriction or condition imposed upon a pretrial detainee must be reasonably related to a legitimate penological goal. If it is not and the restriction is imposed with the intent to punish, a detainee — who has not been convicted of any crime and therefore may not be punished at all — may be said to have been unlawfully punished. See Bell, 441 U.S. at 539. Additionally, the often-quoted phrase "the minimal civilized measure of life's necessities" states the gist of the objective component of the deliberate indifference standard used to assess certain other conditions of confinement claims. See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981).

160 The Fifth Circuit has defined an analytical distinction between claims that implicate "episodic acts" that occur during a detainee's confinement and those that pertain to the general conditions of his confinement. See Hare v. City of Corinth, 74 F.3d 633, 646-48 (5th Cir. 1996) (en banc) (noting distinction between episodic acts or omissions and general conditions of confinement claims by pretrial detainees; the former type of claim requires a showing that the defendants acted with deliberate indifference to the plaintiff's needs and the latter requires a showing that the challenged condition or restriction was not reasonably related to a legitimate governmental purpose, such as maintaining order and security); Grabowski v. Jackson Counly Public Defenders Office, 47 F.3d 1386, 1395, 1398 (5th Cir. 1995). Notwithstanding this conceptual distinction, the Fifth Circuit also noted in Hare that "a proper application ofBell's reasonable-relationship test is functionally equivalent to a deliberate indifference inquiry." See Hare, 74 F.3d at 643, 646.
That the analysis under Bell and a deliberate indifference inquiry are functionally equivalent seems consistent with the approach that has been used by courts in the Fourth Circuit in evaluating conditions of confinement claims made by pretrial detainees. Under this approach, a plaintiff complaining of the conditions of his confinement must show either (1) an expressed intent to punish, or (2) lack of a reasonable relationship to a legitimate nonpunitive governmental objectiv e, from which a punitive intent may be inferred. See Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citation omitted). A defendant is said to have acted with the requisite culpable intent when he exhibits deliberate indifference to the plaintiff's suffering. See Buie v. Myers, 2007 WL 509789 (D.S.C. 2007) (referencing deliberate indifference standard enunciated in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)); Sykes v. Horry County Detention Center, 2006 WL 2827709 (D.S.C. 2006)
In the instant case, the court will review Count I and Counts III through VI as use of excessive force claims. The court shall additionally address these counts as conditions of confinement claims, loosely employing the Fifth Circuit's analytical framework. Without specifically classifying the claims as being either "episodic acts" or "general conditions of confinement" claims, the court will discuss the allegations under both a deliberate indifference standard and a reasonable relationship standard, although there appears to be no substantive difference between the two.

Legal Standards

Qualified Immunity

A government official who is sued under § 1983 may seek summary judgment on the ground that he is entitled to qualified immunity.See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). It is well settled that "[q]ualified immunity offers complete protection for government officials sued in their individual capacities if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

To be eligible for qualified immunity, the official must first establish that he was performing a "discretionary function" at the time the alleged violation of federal law occurred. See Crosby v. Monroe County, 394 F.3d 1328, 1331 (11th Cir. 2004) (citing Holloman, 370 F.3d at 1263-64). Once the official has established that he was engaged in a discretionary function, the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity. See Holloman, 370 F.3d at 1264. The Supreme Court has set forth a two-part test for the qualified immunity analysis. "The threshold inquiry a court must undertake . . . is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002) (citingSaucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. "If a constitutional right would have been violated under the plaintiff's version of the facts, `the next, sequential step is to ask whether the right was clearly established.'"Vinyard, 311 F.3d at 1346 (quoting Saucier, 533 U.S. at 201). Before qualified immunity is surrendered by an officer, he is entitled to fair and clear warning that the challenged conduct violates federally protected rights. See Vinyard, 311 F.3d at 1350-51. "A principle of constitutional law can be `clearly established' even if there are `notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights."Holloman, 370 F.3d at 1277 (quoting United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997)). Private entities are not entitled to qualified immunity. See Swann v. Southern Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004) (agreeing that private entity, which was a private corporation under contract to provide medical care to inmates at the county jail, was not entitled to assert a qualified immunity defense); Hinson v. Edmond, 205 F.3d 1264, 1265 (11th Cir. 2000) (noting that a "privately employed prison physician" was "ineligible to advance the defense of qualified immunity").

Use of Excessive Force

Under the protection guaranteed by the Due Process Clause of the Fourteenth Amendment, a pretrial detainee must not be punished in any manner prior to a lawful conviction. See Bell, 441 U.S. at 536; McMillian v. Johnson, 88 F.3d 1554, 1564 (11th Cir. 1996). The Constitution, however, permits the use of physical coercion on a detainee "in a custodial setting as long as it is applied in a good faith effort to maintain or restore discipline and not maliciously and sadistically to cause harm."Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002). Thus, only a use of force that "is physically barbarous [or] involv[es] . . . the unnecessary and wanton infliction of pain or the imposition of pain totally without pen[o]logical justification" violates due process. See Evans v. Dugger, 908 F.2d 801, 803 (11th Cir. 1990). Stated otherwise, the plaintiff must show that the defendant's conduct "shocks the conscience."Lumley, 327 F.3d at 1196; Hope, 536 U.S. at 738 (finding that subjecting prisoner to being tied to outdoors hitching post in heat of day without water or access to a toiletfor seven hours violated the Eighth Amendment). To be sure, the conduct at issue must "offend even hardened sensibilities" and implicate only the "most egregious official conduct." Carr v. Tatangelo, 338 F.3d 1259, 1271, n. 23 (11th Cir. 2003). The court may consider several factors in gauging the legitimacy of the use of physical coercion in a given situation, including "the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Skrtich, 280 F.3d at 1300 (quoting Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). From consideration of such factors, "inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur."Whitley, 475 U.S. at 321 (quotation omitted). A defense of qualified immunity is not available in cases in which excessive force was used because Supreme Court decisions have clearly established that the malicious and sadistic use of force is always a violation of the Constitution. See Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002). As the Eleventh Circuit noted inJohnson, there is simply no room for a qualified immunity defense for such violations. Id. Conditions of Confinement

With respect to claims attacking general conditions, practices, rules, or restrictions of pretrial confinement, the "reasonable relationship" test enunciated in Bell is properly applied to determine whether a restriction imposed on a pretrial detainee is punitive and therefore unlawful. See Hare, 74 F.3d at 646-48. This test requires the court to determine whether the condition was imposed for the purpose of punishment or whether it was incident to some legitimate governmental purpose. See Bell, 441 U.S. at 538; Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) ("An intent to punish on the part of detention facility officials is sufficient to show unconstitutional pretrial punishment"). If a restriction or condition is not reasonably related to a legitimate goal, such that it is arbitrary or purposeless, the court may infer that the purpose of the governmental action was punishment. See Bell, 441 U.S. at 539;Magluta, 375 F.3d at 1273.

The Supreme Court has developed a two-part analysis for challenges to general conditions of confinement. First, under the "objective component" of the analysis, an inmate must prove that the condition of which he complains is sufficiently serious. See Hudson, 503 U.S. at 8. The challenged condition must be "extreme." Id. at 9. The inmate must, at the very least show, that a condition of his confinement posed an unreasonable risk of serious damage to his future health or safety. Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (citations and quotations omitted). Moreover, because the Constitution guarantees that inmates should not be deprived of the minimal civilized measure of life's necessities, see Rhodes, 452 U.S. at 347, the court should also assess whether society considers the complained-of risk to be so grave that it violates contemporary standards of decency to expose anyone to it unwillingly. The second prong of the deliberate indifference standard is a "subjective component" that requires the plaintiff to show that the defendants "acted with a sufficiently culpable state of mind." See Hudson, 503 U.S. at 8. As the Supreme Court has explained:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the 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 he must also draw the inference.

Farmer, 511 U.S. at 837. Consistent with the Supreme Court's instruction, the Eleventh Circuit has stated that "deliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003).

Failure to Intervene

An officer who is present at the scene but fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held personally liable for such nonfeasance. See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1560 (11th Cir. 1993), as amended, 14 F.3d 583 (11th Cir. 1994) ("A police officer has a duty to intervene when another officer uses excessive force."); see also Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998) ("[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable"); Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).

Deliberate Indifference to Serious Medical Needs

It is well settled that "deliberate indifference to [the] serious medical needs of [a] prisoner constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment." Farrow, 320 F.3d at 1243 (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Campbell v. Sikes, 169 F.3d 1353 (11th Cir. 1999). To establish a claim of deliberate indifference to a serious medical need a plaintiff must satisfy both an objective and a subjective inquiry. See Farrow, 320 F.3d at 1243 (citing Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000)). A plaintiff must first show that he had an "objectively serious medical need." Id. A medical need is serious when it "has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. A plaintiff must also establish that a defendant had subjective knowledge of a risk of serious harm (i.e., both awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists and the actual drawing of the inference) and that he disregarded that risk. Additionally, the plaintiff must show that the defendant's conduct constituted more than gross negligence.See Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005); see also Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004) (noting, after Farmer that gross negligence fails to satisfy state-of-mind requirement for deliberate indifference). Inadvertence or mere negligence in failing to provide adequate medical care does not rise to a constitutional violation. Farrow, 320 F.3d at 1243. Rather, "medical treatment violates the Eighth Amendment only when it is `so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). Thus cruel and unusual punishment involves more than just ordinary lack of due care for the prisoner's interest or safety; it consists of wantonness or obduracy.Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986). While "[i]t is . . . true that when a prison inmate has received medical care, courts hesitate to find a Eighth Amendment violation," Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989), "[h]esitation does not mean . . . that the course of a physician's treatment of a prison inmate's medical or psychiatric problems can never manifest the physician's deliberate indifference to the inmate's medical needs. We reaffirm . . . that grossly incompetent medical care . . . can constitute deliberate indifference." Id.; see also McElligott v. Foley, 182 F.3d 1248, 1256 (11th Cir. 1999) (finding sufficient evidence to permit a jury to conclude that defendants were not merely negligent in the medical care they provided plaintiff but rather knowingly provided grossly inadequate care or no care at all).

August 23, 2005

Count I: Deputies Driver and Hankinson ¹⁶¹

161 In this case, there is no dispute that Driver and Hankinson — as well as Merritt, B. Whitlock, Lastinger, and Day — were performing discretionary functions at the time the alleged constitutional violations occurred. Thus the burden shifts to Smith to show that each of these defendants is not entitled to qualified immunity. This also applies to McNesby with respect to Smith's claim brought against him in his individual capacity.

Taking Smith's allegations as true, as it must, the court finds that Smith has failed to show that Driver subjected Boggon to the use of excessive force or an unconstitutional condition of confinement on August 23, 2005. The undisputed evidence reflects that Driver applied only a minimal amount of force in response to Boggon's resistance as Boggon was being moved from the infirmary to the Phase One holding tanks. Furthermore, Driver did not participate in physically securing Boggon to the chair or in the decisions to place or maintain Boggon in the restraint chair. Because there is no basis for concluding that Driver committed any constitutional violations on August 23, 2005, he is entitled to qualified immunity. Summary judgment shall therefore be entered in his favor on Count I.

The court also concludes that Smith has failed to show that Hankinson subjected Boggon to the use of excessive force or an unconstitutional condition of confinement on August 23rd by ordering or keeping him in the restraint chair for over six hours. In Williams v. Burton, 943 F.2d 1572 (11th Cir. 1991), the Eleventh Circuit approved the initial decision to place a persistently disruptive inmate in four-point restraints and a gag. Id. at 1575. The court then addressed the plaintiff's assertion that his placement in such restraints for over twenty-eight hours, with brief intervals for eating, physical exercise, and toilet use, extended longer than penologically necessary.¹⁶² The court observed that "once the necessity for the application of force ceases, any continued use of harmful force can be a violation of the Eighth Amendment. . . ." Id. at 1576. Nevertheless, after use of the restraints has been "initially justified, it becomes somewhat problematic as to how long they are necessary to meet the particular exigent circumstances." Id.;see also Sims v. Mashburn, 25 F.3d 980, 984 (11th Cir. 1994). In assessing whether the duration of use was appropriate, the court should "give great deference to the actions of prison officials in applying prophylactic or preventative measures" to maintain prison security, id. (citing Whitley, 475 U.S. at 321-22), and should also consider the subjective intent or "good faith of the officers in exercising [their] judgment." Id.

162 Smith does not allege that Boggon was denied opportunities to use the toilet or to exercise while restrained in the chair. The court nevertheless notes that there appears to be only one reference in Boggon's records regarding any exercise he was permitted while restrained, and it located no references regarding what arrangements were made for Boggon to relieve himself.

Based on the evidence of record, the court concludes that on August 23rd Hankinson could have plausibly believed that a need existed to restrain Boggon in order to control his violent behavior and to prevent him from harming himself or others. Additionally, the court concludes that, under the circumstances, Hankinson could have believed that use of the restraint chair was a reasonable and appropriate means of restraining Boggon. As Smith contends, Hankinson testified that if some of an inmate's restraints could be removed and he could be fed without incident, as Boggon was on August 23rd, the inmate theoretically "should be" capable of being released from the restraint chair.¹⁶³ This testimony, however, cannot fairly be taken as an admission by Hankinson that he wrongly failed to release Boggon as early as he should have. Hankinson also testified that he observed Boggon "periodically" throughout his confinement in the restraint chair on August 23rd and determined that Boggon continued to require restraint until approximately 3:15 p.m. because he remained combative and disruptive. Although Hankinson acknowledged that he made no written memorialization of his observations of Boggon on August 23rd, Smith does not assert that any provision in ECSO General Order 819.0 requires the assessments be made in writing, nor could the court locate any such provision.¹⁶⁴ Furthermore, even if Hankinson failed to consider whether Boggon was fit for release precisely once every hour of Boggon's six and one-half hours of confinement in the chair and taking into consideration Hankinson's awareness that Boggon likely was suffering from mental illness, the court concludes that such conduct does not rise to the level of "shock[ing] the conscience," offend[ing] even hardened sensibilities," or implicating "egregious official conduct."Lumley, 327 F.3d at 1196 (strapping pretrial detainee to hospital bed because he was a flight risk and had escaped from prison did not amount to conduct that "shocks the conscience"); Carr, 338 F.3d at 1271, n. 23. The restraint chair's manufacturer approves use of the chair for up to ten hours, with medical supervision. A reasonable jury could not conclude that Hankinson's alleged omission of failing to assess a Boggon's eligibility for release on an hourly basis over the course of a six and one-half hour confinement constitutes malicious or sadistic conduct engaged in for the very purpose of causing harm. For these reasons the court concludes that Smith has failed to establish that Hankinson subjected Boggon to the use of excessive force. See Williams, 943 F.2d at 1578; see also McBride v. Rivers, 170 Fed.Appx. 648, 657 (11th Cir. 2006) (holding that defendants were entitled to summary judgment where inmate "failed to produce evidence showing that [the challenged] measures were taken `maliciously and sadistically for the very purpose of causing harm.'").

163 Doc. 175-6 at 75.

164 Doc. 175-6 at 74.

Nor has Smith shown that Hankinson ordered and maintained Boggon's placement in the restraint chair for the improper purpose of punishment. The undisputed evidence reflects that on August 23rd, in response to Boggon's extremely unruly and disruptive conduct — which from all accounts stemmed from mental illness — Hankinson acted with the legitimate governmental purpose of maintaining order and security in the Jail. See Bell, 441 U.S. at 538.

Smith has also failed to show that Hankinson acted with deliberate indifference on August 23rd. The court is satisfied Smith has shown that excessive use of a restraint chair can pose an unreasonable risk of serious harm to an inmate's health or safety and thus concludes there is no genuine issue of fact with respect to the objective prong of the deliberate indifference standard in this case. The court nonetheless finds that Smith has failed to satisfy the subjective prong of the standard. Smith has come forward with no evidence that indicates Hankinson "acted with a sufficiently culpable state of mind" when he restrained Boggon on August 23rd. See Hudson, 503 U.S. at 8. Nothing in the record suggests that on that date Hankinson knew of yet disregarded an excessive risk to Boggon's health or safety that was posed by Boggon's placement in the restraint chair. To the contrary, Hankinson took several steps to have Boggon evaluated by Szmurlo, including taking Boggon directly to Szmurlo's office and then facilitating a meeting between the two in Boggon's cell. Such evidence, if anything, belies any deliberate indifference by Hankinson to Boggon's serious medical needs. Nor is there evidence to support a finding that Hankinson was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed to Boggon by failing to hourly consider him for release from the chair; the evidence also does not show that Hankinson in fact also drew that inference and disregarded it. See Farmer, 511 U.S. at 837; Farrow, 320 F.3d at 1245. See also Blakeney v. Rusk County Sheriff, 89 Fed.Appx. 897, 899 (5th Cir. 2004) (finding no error in lower court's determination that pretrial detainee's twenty-hour confinement in restraint chair did not constitute punishment or deliberate indifference). At most, if at all, any failure by Hankinson on August 23rd to assess Boggon hourly for release from the restraint chair or to release him earlier constitutes negligence. Negligence, however, does not rise to the level of a constitutional tort that is cognizable under § 1983. See Daniels v. Williams, 474 U.S. 327, 329, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (the Constitution is not offended by negligent acts of an official causing unintended loss of life, liberty or property); Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (stating that protections of the Constitution "are just not triggered by lack of due care by prison officials"); Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir. 1994) (recognizing that negligence is not constitutional violation simply because victim is prisoner).

For all of the foregoing reasons, the court concludes that Hankinson is entitled to qualified immunity with respect to Smith's allegations pertaining to August 23, 2005. Summary judgment therefore shall be entered in Hankinson's favor on Count I.

Count XI: Nurse Burden

Burden argues that Smith must, but has failed to, establish that Boggon suffered from a serious medical need in order to satisfy the subjective component of her claims of deliberate indifference. The court disagrees, as it finds ample evidence in the record that Boggon exhibited symptoms of an acute mental condition that would have even been evident even to a lay person on August 23rd.¹⁶⁵ Additionally, Boggon's medical records prior to August 23rd, much of which Burden and/or the other nurses created and to which they were all privy, also contain a referral for a mental health evaluation and observation, as well as several references to Boggon's confusion and disturbed conduct.¹⁶⁶ The court concludes, however, that Smith has failed to show that on August 23, 2005, Burden was deliberately indifferent to Boggon's symptoms of mental illness. There is no evidence, circumstantial or direct, sufficient to create a jury question as to whether Burden subjectively knew that Boggon would be exposed to a risk of serious harm by being placed in the restraint chair for over six hours. Nor is there evidence that Burden drew, yet disregarded, the inference that a substantial risk of Boggon's injury or death existed. See Bozeman, 422 F.3d at 1272. The undisputed record reflects that Burden performed medical checks of Boggon every two hours, as ECJ policy requires, while he was restrained on August 23rd and that she kept detailed records of his blood pressure and other vital signs. She also timely notified the MHC Owsley about what she learned about Boggon's condition from the call she took from Boggon's wife. Based on Burden's message, Szmurlo had MHC Owsley return the call to obtain additional information about Boggon. Moreover, Boggon's medical records reflect that on August 19th he had been referred to the ECJ mental health department for an evaluation. Given this evidence, it cannot be said that Burden's care on August 23rd was "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. Assuming that Burden should have, but failed to, inform MCH Owsley of all of the details she learned about Boggon's condition from his wife, the court concludes that this failure was remedied by MCH Owsley's follow-up telephone call to Smith. Moreover, even if Burden should have taken other steps on August 23rd to notify the mental health department of Boggon's condition in order to obtain treatment for him or should have suggested to security officers that Boggon be released from the chair, these omissions at most — if at all — were negligent acts. Negligence, however, does not rise to the level of a constitutional violation. See Farrow, 320 F.3d at 1243.

165 In support of their argument that Smith has failed to show that Boggon suffered from a serious medical need, Burden and the other nurse defendants point to Boggon's refusal to cooperate in efforts to medically assess and treat him after he was arrested. The court rejects — and in fact finds offensive — this specious argument and its implication that the mentally ill Boggon was somehow responsible for the level of medical evaluation and care that he received while detained at the ECJ.

166 Moreover, with respect to Burden, the evidence reflects that Burden was aware of Boggon's medical need because she spoke directly with Boggon's wife, who provided some additional information about Boggon's psychiatric background.

For all of the foregoing reasons, summary judgment shall be granted in Burden's favor on Count XI.

Count XVII: Psychiatrist Szmurlo

Szmurlo is also entitled to summary judgment in his favor as Smith has not shown that he was deliberately indifferent to Boggon's mental condition. Again, the court concludes that Smith has satisfied the objective component of the inquiry. As to the subjective component, however, the evidence shows that Szmurlo was aware of the potential risk of serious harm to Boggon and took reasonable actions at the time in response to that awareness. See Bozeman, 422 F.3d at 1272. Szmurlo directed MHC Owsley to obtain additional information from Boggon's wife about Boggon's mental health history, attempted unsuccessfully to examine Boggon, conferred with Dr. Monastero about Boggon's condition (including advising him of Boggon's possible need for emergency treatment before Szmurlo's planned return to the Jail on August 30th), and wrote a report outlining his findings concerning Boggon's condition and discussing possible treatment options. In light of this evidence, the court is satisfied that no reasonable jury could find that Szmurlo's care was "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. Any failure by Szmurlo on August 23rd to admit Boggon to the infirmary, gather his prior psychiatric records, or arrange for his family to visit does not constitute deliberate indifference to Boggon's serious medical needs. At most, if at all, any acts or omissions by Szmurlo in this regard constitute negligence. As noted, however, negligence does not rise to the level of a constitutional tort cognizable under § 1983. See Daniels v. Williams, 474 U.S. at 329.

For all of the foregoing reasons, summary judgment shall be entered on Count XVII in Szmurlo's favor.

August 24, 2005

Count XII: Nurses Gregory and Helms

As discussed, Smith has satisfied the objective component of the deliberate indifference inquiry with respect to Boggon's medical needs by showing that Boggon suffered from a mental impairment that would have been obvious even to a lay person. Additionally, there was ample evidence suggesting that Boggon suffered from mental illness in his medical records by August 24th, of which Gregory and Helms had to have been aware. Even so, the court concludes that Smith has failed to show that either nurse was deliberately indifferent to Boggon's mental illness. Smith points to no evidence sufficient to create a genuine issue of fact as to whether either Gregory or Helms knew that Boggon's placement in a restraint chair for about nine and one-half hours (after Boggon had already been held in the chair in excess of six hours the previous day and then released for approximately nine hours) would expose him to a risk of serious harm or death. Nor is there evidence that either nurse actually drew that inference yet disregarded it. See Bozeman, 422 F.3d at 1272. Boggon's medical records for August 24th show that, when Boggon permitted it, Gregory and Helms performed regular medical checks while Boggon was restrained in the chair and that they kept detailed records of their findings regarding his blood pressure and other vital signs. The court concludes that the care provided by Gregory and Helms — including any omission in failing to notify mental health department staff to request treatment for his symptoms of mental illness or to recommend Boggon's earlier release from the chair to security officers — was not "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. Their conduct cannot be described as wanton or obdurate. See Whitley, 475 U.S. at 319;Waldrop, 871 F.2d at 1035. At most, any acts or omissions by Gregory and Helms were committed negligently. Negligence, however, does not support a constitutional tort. See Farrow, 320 F.3d at 1243.

Summary judgment is warranted and shall be granted in favor of Helms and Gregory on Count XII.

August 25, 2005

Count III: Deputies Driver and Merritt

As alleged by Smith, Merritt's sole involvement in this case pertains to his ordering Boggon's placement in the restraint chair at 8:58 a.m. on August 25th and, after a short period of release, again doing so at approximately 3:30 p.m.

The deputies' evidence reflects that Merritt did not personally assess Boggon's fitness for release from the restraint chair on an hourly basis but that he did assess him during the course of Boggon's confinement, either in person or possibly through the verbal reports from on-scene security or medical staff members.¹⁶⁷ In addition, Merritt testified that in order for him to order the release of an inmate from the chair the inmate must be calm and not resisting. On each of the occasions Boggon was assessed, however, Merritt found him unfit for release.¹⁶⁸ Smith relies on the affidavit of former inmate James Skipper, who testified that he witnessed Boggon being tased, then forced into the restraint chair, after his cell flooded. According to Mr. Skipper, Boggon was "punish[ed]" for his conduct because he had not been "not resisting in any way."¹⁶⁹

167 Doc. 186-20 at 5-8.

168 Id. at 8, 11.

169 Doc. 207-2. Mr. Skipper testified that he witnessed this incident "[a] day or two before August 29, 2005 . . .," which would place the date as August 27th or 28th, not August 25th. Given the evidence that a cell-flooding incident occurred on August 25th and that none took place on August 27th or 28th, the court assumes that Mr. Skipper has misidentified the date.

The court is persuaded that Merritt could have reasonably believed that a need existed to place Boggon in the restraint chair in order to control his disruptive behavior. The evidence is undisputed that at approximately 3:00 p.m. Boggon threw his cot and mattress. Also, with respect to the cell-flooding incident that took place at 9:00 a.m., Mr. Skipper's affidavit omits any mention of the series of events that led up to Boggon's placement in the chair, other than noting that the toilet in his cell had overflowed. Thus Mr. Skipper's testimony creates no issue of fact regarding Merritt's decision to place Boggon in the restraint chair. Moreover, Merritt could have reasonably believed that use of the chair was an appropriate and safe means of effecting control over Boggon. At the time Merritt first ordered Boggon's placement in the chair it had been approximately twenty-three hours since Boggon had been restrained in that manner and at the time of his second placement in the chair Boggon had been in the chair approximately six hours.

Merritt also had reason to believe that Boggon's continued placement in the chair was warranted. Under Merritt's watch on August 25th, Boggon was confined to the chair a total of approximately nine and one-half hours, which is slightly less than the length of time approved by the chair manufacturer when the device is used under medical supervision. Merritt also testified that he repeatedly assessed Boggon for release but that, under the Jail's requirements that a restrained inmate be calm and not resisting in order to be eligible for release, Boggon did not qualify. Also, when Merritt attempted to release Boggon at approximately 3:00 p.m., Boggon almost immediately became disruptive again.

Even if Merritt should have but failed to assess Boggon each of the over nine hours Boggon was secured to the chair on August 25th under Merritt's supervision, such conduct does not rise to the extreme level required to make out an excessive force claim. Smith has not submitted evidence that suggests any act or omission by Merritt was malicious or sadistic, committed for the very purpose of causing Boggon harm. See Lumley, 327 F.3d at 1196. In light of these facts, and giving deference to Merritt's judgment, the court concludes that no reasonable jury could find that Merritt's conduct was malicious or sadistic. Merritt's actions do not "shock the conscience," "offend even hardened sensibilities," or implicate "egregious official conduct." Lumley, 327 F.3d at 1196;Carr, 338 F.3d at 1271, n. 23. The court therefore finds that Smith has failed to establish that Merritt subjected Boggon to the unlawful use of excessive force on August 25, 2005.

The court further concludes that Smith has not shown that Merrit ordered and maintained Boggon's placement in the restraint chair for the improper purpose of punishment. The evidence reflects that on August 25th, in response to Boggon's unruly and destructive conduct, Merritt acted with the legitimate governmental purpose of seeking to maintain order and security.See Bell, 441 U.S. at 538. Moreover, Smith has failed to show that Merritt acted with deliberate indifference because she has not come forward with evidence suggesting that he "acted with a sufficiently culpable state of mind." See Hudson, 503 U.S. at 8. Smith points to no evidence that reflects that Merritt was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed to Boggon by ordering and maintaining his placement in the restraint chair for over nine hours without hourly considering him for release. Nor has she shown that Merritt in fact also drew that inference yet disregarded it. See Farmer, 511 U.S. at 837; Farrow, 320 F.3d at 1245. See also Blakeney, 89 Fed.Appx. at 899. If anything, Merritt acted negligently. As noted, however, negligent conduct is not actionable under § 1983. See Daniels, 474 U.S. at 329.

For all of the foregoing reasons, the court concludes that Merritt is entitled to qualified immunity with respect to Smith's allegations pertaining to August 25, 2005. Summary judgment therefore shall be entered in Merritt's favor on Count III.

Summary judgment shall also be entered in Driver's favor with respect to Count III. The undisputed evidence reflects that Driver took no part in the decisions to place or maintain Boggon in the restraint chair. Thus Smith has failed to show that Driver subjected Boggon to an unconstitutional condition of confinement on August 25, 2005, with respect to use of the restraint chair.¹⁷⁰ As Driver is entitled to qualified immunity, summary judgment shall be entered in his favor on Count III.

170 Smith's allegations that Driver subjected Boggon to the unlawful use of force on August 25th by tasing him are addressed below in the section discussing Count VIII.

Count VIII: Deputy Driver

In Count VIII Smith asserts that on August 25th, while trying to force Boggon to comply with the order to sit in the restraint chair at approximately 9:00 a.m., Driver tased Boggon maliciously and sadistically and for the very purpose of harming him. Relying on Mr. Skipper's affidavit, Smith asserts that a genuine issue of fact exists as to whether any use of force at all against Boggon was warranted on August 25th.

The deputies' evidence reflects that after Boggon flooded his cell and failed to respond to Driver's repeated commands and warnings to sit in the restraint chair, Driver deployed his taser. According to Mr. Skipper's affidavit, however, Boggon was tased even though he was "not resisting in any way." The court concludes that a jury question exists with respect to whether Driver's use of his taser against Boggon on August 25th was warranted under the circumstances or whether, in light of Boggon's mental condition — described by Driver himself as "derange[ment]" — and Boggon's asserted lack of resistance as noted by Mr. Skipper, it was a malicious and sadistic use of force because it was "physically barbarous" or involved "the imposition of pain totally without pen[o]logical justification."See Evans, 908 F.2d at 803. As an issue of fact exists regarding whether Driver's use of the taser violated Boggon's right to be free of the use of excessive force on August 25, 2005, summary judgment in favor of Driver on Count VIII is denied.

Count XIII: Nurses Helms and L. Whitlock

As previously discussed, the court finds that Smith has satisfied the objective component of the deliberate indifference inquiry with respect to her claims of deliberate indifference to a serious medical need. Smith has not, however, satisfied the subjective component with respect to Count XIII. Smith points to no evidence, circumstantial or otherwise, sufficient to create a genuine issue of fact regarding whether Helms knew that Boggon's placement in a restraint chair for the six hours she monitored him on August 25th would expose him to a risk of serious harm or death. This is true notwithstanding her knowledge of the symptoms of mental illness he exhibited and his repeated confinements in the chair. While a closer question with respect to L. Whitlock, who on August 25th monitored Boggon in the restraint chair for eight and one-half hours, the same also applies. The evidence simply is not sufficient for a reasonable jury to conclude that, even knowing of Boggon's symptoms of mental illness and repeated confinements in the chair (which by 12:00 a.m. on August 26th totaled approximately fifteen hours straight since the morning of August 25th), L. Whitlock was aware that Boggon's placement in the restraint chair would expose him to a risk of serious harm or death. Nor is there evidence that Helms or L. Whitlock actually drew the inference that a substantial risk of injury or death existed yet disregarded that inference. See Bozeman, 422 F.3d at 1272. Helms and L. Whitlock performed regular checks of Boggon on August 25th while he was restrained in the chair, and the court concludes that the care they provided — including any omissions in failing to notify the ECJ mental health department to obtain orders for treatment of Boggon's mental illness or to suggest that security staff to release him — was not "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. Helms' conduct on August 25th did not rise to the level of wantonness, obduracy, or gross incompetence. See Whitley, 475 U.S. at 319; Waldrop, 871 F.2d at 1035. Nor can L. Whitlock's conduct be so described.¹⁷¹ At most the nurses' conduct constituted negligence — perhaps even gross negligence — but negligence of any sort does not state a constitutional claim. See Farrow, 320 F.3d at 1243.

171 As noted, by midnight on August 25th, Boggon had been restrained in the chair virtually nonstop for almost fifteen hours, which was more than five hours, or 50% longer, than the chair manufacturer recommends, even with medical supervision. L. Whitlock apparently allowed Boggon's extended restraint without questioning its appropriateness. She definitely did not seek any orders from a physician or declare an emergency regarding his mental condition. In the court's view, L. Whitlock's failure to act under the circumstances presented to, which included knowledge of Boggon's symptoms of severe mental illness, tests the bounds of merely negligent conduct. Nevertheless, the court concludes that L. Whitlock's conduct was not egregious enough at this point to rise arguably to the level of gross incompetence, thus potentially subjecting her to liability for deliberate indifference.

Summary judgment is warranted and shall be granted in favor of Helms and L. Whitlock on Count XIII.

August 26, 2005

Count IV: Deputy B. Whitlock

The undisputed evidence reflects that B. Whitlock kept Boggon in the chair during the evening of August 25th, then ordered Boggon's release at approximately 6:00 a.m. on the 26th.¹⁷² Almost immediately, Boggon tried to flood his cell again, then punched, bit, and spit at the deputies who tried to restrain him, so B. Whitlock quickly returned Boggon to the restraint chair.

172 Smith's allegations that B. Whitlock subjected Boggon to the unlawful use of force on August 26th by tasing him are addressed below in the section discussing Count IX.

As noted in Williams, after the use of a restraint has been "initially justified, it becomes somewhat problematic as to how long [it is] necessary to meet the particular exigent circumstances." Williams, 943 F.2d at 1576. In this case, the court must consider at what point the continued use of the restraint chair, in light of Boggon's obvious symptoms of severe mental illness and recurring episodes of violence and unruliness, constituted a malicious and sadistic use of force — because it is "physically barbarous" or involves "the imposition of pain totally without pen[o]logical justification" — rather than a good faith effort to maintain discipline. See Evans, 908 F.2d at 803. Of particular relevance to that inquiry in this case is whether efforts were made by the defendants "to temper the severity of a forceful response." Skrtich, 280 F.3d at 1300.

Under B. Whitlock's supervision, Boggon was kept in the restraint chair from 7:00 p.m. on August 25th until 6:00 a.m. on August 26th, or approximately eleven hours. Additionally, B. Whitlock had to have been aware that by 6:00 a.m. on the 26th Boggon had been confined in the chair virtually nonstop since approximately 9:00 a.m. the previous day — a total of approximately twenty-one hours. Also, since August 23rd, which was just three days prior, Boggon had spent a total of approximately thirty-seven hours in the restraint chair. Boggon's mental state and uncontrolled behavior were well documented in his records. During the time he oversaw Boggon's confinement in the chair on August 26th, B. Whitlock certainly was aware that Boggon appeared to be suffering from mental illness and that his fractious conduct had resulted in his being placed in the restraint chair repeatedly. B. Whitlock also had to have known that, while use of the chair temporarily prevented Boggon from harming himself or others, his agitated and sometimes violent behavior persisted unabated and uncontrolled. In this case, an obviously mentally disturbed Boggon was restrained some twenty-one hours with B. Whitlock's knowledge or under his direct supervision. The court notes that there is nothing in the record to indicate that during that time B. Whitlock made any effort "to temper the severity" of this extended use of force, such as attempting to release Boggon from the chair rather than allowing him to remain continuously confined. Nor did B. Whitlock seek out any alternative control techniques during the majority of the time he supervised Boggon's restraint in the chair: it was not until after 6:30 a.m. on August 26th that L. Whitlock sought and received authorization to administer the agitation protocol. The court concludes that a jury question exists with respect to whether, under these specific circumstances, B. Whitlock's allowing the prolonged use of the restraint chair constituted a good faith effort to maintain discipline or whether it constituted a malicious and sadistic use of force because it was "physically barbarous" or involved "the imposition of pain totally without pen[o]logical justification."¹⁷³ See Evans, 908 F.2d at 803. Because a jury should determine whether B. Whitlock violated Boggon's right to be free of the use of excessive force by confining him in the restraint chair on August 25th-26, 2005, the motion for summary judgment on Count IV is denied.¹⁷⁴ Count IX: Deputy B. Whitlock

173 This case is distinguishable from Williams, in which the Eleventh Circuit approved the use of four-point restraints and a gag on a prisoner for twenty-eight hours. Williams, 943 F.2d at 1578. Unlike Boggon, Williams was not mentally disturbed; also unlike Boggon, Williams was actively trying to encourage other prisoners to engage in misconduct.

174 Because a jury question exists with respect to whether B. Whitlock used excessive force on Boggon in connection with the restraint chair on August 26, 2005, the court need not consider the conduct under the lesser standards of reasonable relationship or deliberate indifference.

In Count IX Smith asserts that B. Whitlock used excessive force against Boggon by tasing him at least four times on August 26, 2005.

As noted, the evidence reflects that on August 26th B. Whitlock was aware that Boggon was displaying symptoms of mental illness. B. Whitlock was also aware that Boggon had repeatedly engaged in violent and disruptive conduct that had resulted in his being placed in the restraint chair for numerous hours and being tased the previous day. Evidence of Boggon's mental condition had accumulated since Boggon's detention commenced on August 19th and culminated with the events of August 26th. The court concludes that a jury question also exists with respect to whether B. Whitlock could have believed under the circumstances he faced on August 26th that using a taser at least four times on the obviously mentally disturbed Boggon — even on the milder "short stun" setting used by B. Whitlock — was an appropriate use of force or whether it constituted conduct that "shock[s] the conscience," "offend[s] even hardened sensibilities," or implicates "egregious official conduct." Lumley, 327 F.3d at 1196; Carr, 338 F.3d at 1271, n. 23. As an issue of fact exists regarding whether B. Whitlock's use of the taser violated Boggon's right to be free of the use of excessive force on August 26, 2005, summary judgment on Count IX is denied.

Count XIV: Nurses L. Whitlock and Burden

The evidence reflects that L. Whitlock checked Boggon throughout the early morning hours of August 26th and took his vital signs when Boggon permitted it. After Boggon's return to the chair about 6:30 a.m., L. Whitlock obtained authorization from Dr. Monastero to administer the agitation protocol to Boggon. She then checked Boggon one additional time before her shift ended at 7:00 a.m. Burden came on duty at 7:00 a.m., and she checked Boggon throughout the day, until his release at 6:20 p.m.

As previously discussed, the court is satisfied that Smith has met the objective component of the deliberate indifference inquiry with respect to her claim of deliberate indifference to a serious medical need. As to Count XIV, Smith has also met the subjective component. At the time L.Whitlock sought authorization from Dr. Monastero to use the agitation protocol at about 6:30 a.m. on August 26th, Boggon had already been in the chair for approximately twenty-one hours, virtually nonstop. The court concludes that a genuine issue of material fact exists with respect to whether L. Whitlock knew, yet disregarded, that a risk of serious harm to Boggon would result from his placement in the restraint chair for this length of time (more than fourteen hours of which were under L. Whitlock's direct monitoring) without her seeking a physician's order regarding his treatment, declaring an emergency, or recommending his release from the chair.

During the nearly ten hours Burden monitored Boggan on August 26th she repeatedly described him as being calm, quiet, and in no apparent distress. Thus Burden was aware of Boggon's compliance. She must also have known, or at least can be charged with the knowledge, that he had been restrained in the chair over thirty-two of the previous thirty-three hours. Accordingly, the court further concludes that a question of facts also exists with respect to whether Burden knew there was a risk of serious harm to Boggon resulting from his continued placement in the restraint chair yet ignored that risk by failing to recommend his release or to seek further medical orders regarding his care. A jury should determine whether the nurses' conduct was appropriate under the circumstances or whether their actions were "`so grossly incompetent [or] inadequate . . . as to shock the conscience. . . .'" Harris, 941 F.2d at 1505. Summary judgment therefore is denied on Count XIV.

August 28, 2005

Count V: Deputy Hankinson

Smith alleges that Hankinson unlawfully subjected Boggon to the restraint chair on August 28, 2005. Based upon the evidence of record, the court disagrees.

The evidence reflects that Hankinson decided to place Boggon in the chair when Boggon began beating, banging, and kicking the door of his cell to the point he injured his foot. Thus, although Hankinson had knowledge of Boggon's symptoms of mental illness and his repeated placements in the restraint chair, on August 28th Boggon needed to be restrained in order to protect him from injuring himself.¹⁷⁵ Moreover, during the time Hankinson was on duty Boggon was confined in the chair fewer than six hours, which is well under the ten hours approved by the manufacturer, and Hankinson testified that he attempted to check Boggon hourly. Hankinson's conduct suggests that he made efforts to "temper the severity of a forceful response." Skrtich, 280 F.3d at 1300. The evidence does not suggest that Hankinson's ordering Boggon's placement in the chair or failing to earlier release him were malicious or sadistic acts that were committed for the very purpose of causing Boggon harm. See Lumley, 327 F.3d at 1196. The court therefore concludes that Smith has failed to establish that Hankinson subjected Boggon to excessive force by ordering and maintaining his placement in the restraint chair on August 28th.

175 The situation faced by Hankinson thus was unlike the situation faced by B. Whitlock on August 26th, when B. Whitlock merely sought to prevent Boggon from flooding his cell and otherwise tried to control his disruptive behavior.

Additionally, Smith has not shown that Hankinson acted with the improper purpose of seeking to punish Boggon. The undisputed evidence reflects that on August 28th, when confronted by Boggon's self-destructive conduct, Hankinson placed him in the chair for the legitimate governmental purpose of seeking to prevent Boggon from harming himself. See Bell, 441 U.S. at 538. Moreover, Hankinson permitted Deputy Cox to visit Boggon in the hope it would calm him. Also, Deputy Cox testified that Hankinson expressed concern about Boggon's well-being to her and his desire that Boggon would soon be released. While evidence of such conduct by Hankinson does not absolve him, it also does not suggest that he acted with deliberate indifference. See Hudson, 503 U.S. at 8. Smith has failed to come forward with evidence that reflects that Hankinson was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed to the mentally ill Boggon by ordering and maintaining his placement in the restraint chair for approximately six hours without considering him for release each hour. Smith also has not shown that Hankinson in fact drew that inference but chose to ignore it. See Farmer, 511 U.S. at 837;Farrow, 320 F.3d at 1245. See also Blakeney, 89 Fed.Appx. at 899.

Hankinson knew that Boggon had exhibited signs of mental illness throughout his detention and continued to be violent and disruptive despite having been confined in the restraint chair numerous times. On August 28th, however, Boggon needed to be prevented from further injuring himself. Even if Hankinson should have monitored Boggon more carefully to assess his eligibility for an earlier release from the chair or sought out an alternative to use of the chair, under the circumstances presented to Hankinson the court concludes that at most such conduct was negligent. As previously discussed, however, negligent conduct does not rise to the level of a constitutional tort. See Daniels, 474 U.S. at 329.

For all of the foregoing reasons, the court concludes that Hankinson is entitled to qualified immunity with respect to Smith's allegations pertaining to August 28, 2005. Summary judgment therefore shall be entered in Hankinson's favor on Count V.

Count XV: August 28, 2005 — Nurse Gregory

The court again notes that Smith has satisfied the objective component of the deliberate indifference inquiry and therefore it proceeds to consideration of the subjective component. Smith points to no evidence sufficient to create a jury question as to whether Gregory knew that Boggon's placement in a restraint chair for the six hours she monitored him on August 28th would expose him to a risk of serious harm or death, notwithstanding her knowledge of Boggon's symptoms of mental illness and his numerous confinements in the restraint chair, which by 6:20 a.m. on the 28th totaled approximately fifty-four hours since August 23rd. There is no evidence that Gregory drew, but ignored, the inference that a substantial risk of serious harm to Boggon by failing to seek a physician's order regarding his treatment or recommend his release from the chair. Instead, Gregory supervised Boggon's relatively brief placement in the restraint chair and documented the medical checks she conducted by detailing Boggon's vital signs and his condition. The court concludes that the care Gregory provided on August 28th — including any omissions in failing to notify the ECJ mental health department to obtain orders for treatment of Boggon's mental disturbance or to ask security staff to release him — was not "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. Her conduct on August 28th did not rise to the level of wantonness, obduracy, or gross incompetence. See Whitley, 475 U.S. at 319; Waldrop, 871 F.2d at 1035. At most Gregory's conduct amounted to mere negligence, which does not rise to the level of a constitutional tort. See Farrow, 320 F.3d at 1243. Summary judgment is warranted and shall be granted in favor of Gregory on Count XV.

August 29, 2005

Count VI: Deputies Lastinger and B. Whitlock

In Count VI Smith asserts that Lastinger and B. Whitlock unlawfully subjected Boggon to the restraint chair on August 29, 2005.¹⁷⁶

176 Smith's allegations that B. Whitlock and Lastinger subjected Boggon to the unlawful use of force on August 29th through the use of pepper foam, tasers, and a stun shield are addressed below in the section discussing Count X.

Day is not named as a defendant in Count VI, but the undisputed evidence reflects that it was she, rather than Lastinger or B. Whitlock, who authorized Boggon's placement in the restraint chair on August 29th. Moreover, to the extent Lastinger and B. Whitlock were responsible for assessing Boggon's eligibility for release from the chair, they went off duty at 7:00 p.m., when Boggon had been in the chair approximately two hours. Even if the deputies should have but failed to hourly assess Boggon's eligibility for release for the two hours they remained on duty after his placement in the chair, the court finds there is no evidence that suggests such conduct was malicious or sadistic or committed for the very purpose of harming Boggon. See Lumley, 327 F.3d at 1196. Accordingly, the court concludes that Smith has not shown that Lastinger or B. Whitlock's conduct in connection with use of the restraint chair on August 29th subjected him to the unlawful use of excessive force.

Nor has Smith has shown that either Lastinger or B. Whitlock's conduct was motivated by an improper intent to punish Boggon or that they acted with deliberate indifference. See Hudson, 503 U.S. at 8. Nothing in the record suggests that Lastinger and B. Whitlock kept Boggon in the restraint chair during the two hours they remained on duty for anything other than the legitimate governmental purpose of seeking to maintain order and security.See Bell, 441 U.S. at 538. Additionally, Smith has failed to come forward with evidence that either deputy was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed to Boggon by keeping him in the restraint chair for approximately two hours without considering him for release or that they in fact also drew, but disregarded, that inference. See Farmer, 511 U.S. at 837; Farrow, 320 F.3d at 1245.See also Blakeney, 89 Fed.Appx. at 899. Nevertheless, the court observes that by August 29th B. Whitlock and Lastinger certainly were aware that Boggon had been placed in the restraint chair numerous times during his detention, with only temporary effectiveness due to what appeared to be severe mental illness. Given this knowledge, the deputies' allowing Boggon to remain in the restraint chair without carefully monitoring his eligibility for release — even for two hours — might be considered negligent or even grossly negligent. As the court has previously noted, however, negligent conduct is not actionable under § 1983.See Daniels, 474 U.S. at 329.

The court therefore concludes that Lastinger and B. Whitlock are entitled to qualified immunity with respect to Smith's allegations in Count VI. Summary judgment therefore shall be entered in their favor on that count.

Count X: Deputies Lastinger and B. Whitlock

In Count X, Smith alleges the use of excessive force by Lastinger and B. Whitlock through their use of pepper foam, stun shield, and tasers. There is a disputed fact as to whether at 4:00 p.m. on August 29th Driver was present at the Jail and participated in pepper foaming Boggon. There is no claim against Driver in Count X, however, and Driver's employee timecard shows he was not at the Jail at 4:00 p.m. on August 29th. Even if the court were to find that no genuine issue of fact existed with respect to the pepper foam incident, ¹⁷⁷ however, it concludes jury questions do exist with respect to Smith's other allegations which preclude the court from entering summary judgment in favor of Lastinger and Whitlock on Count X.

177 Mr. Ramsey testified that Boggon was not resisting when he was taken outside his cell immediately after being pepper foamed. Mr. Ramsey did not, however, describe what occurred inside the cell before the use of the foam or dispute that Boggon was again flooding his cell, failed to respond to commands to cease this behavior, made a verbal threat, and appeared ready to strike the deputy. Under the circumstances described by the defendants and not challenged by Smith, the deputy who deployed the pepper foam plausibly could have thought that the use of force and the amount of force employed were necessary. See Whitley, 475 U.S. at 321. Nevertheless, the court need not decide whether a genuine issue of fact exists with respect to the pepper foaming incident because it concludes that jury questions do exist regarding other events that occurred on August 29, 2005.

Specifically, Lastinger and B. Whitlock deny that they used tasers or the stun shield against Boggon on August 29th, an account that stands in stark contrast to the accounts provided by inmate witnesses Skipper, Ramsey, Slater, and Coleman. Lastinger and B. Whitlock acknowledge that they were present in the shower area of the infirmary and assisted with Boggon's placement into the restraint chair on August 29th. Without identifying Lastinger or B. Whitlock, Mr. Ramsey and Mr. Skipper both indicate that they saw Boggon, who was not resisting, being struck with the stun shield. They also state that they saw several flashes of bright light coming from the shower area, which they took to be taser deployments, ¹⁷⁸ and that they heard Boggon scream. Furthermore, Mr. Slater states in his affidavit that he could see Boggon being shot with the taser and heard Boggon shout out in pain in response. Mr. Coleman also states that he heard Boggon screaming from inside the shower area and saw flashes of light illuminate the shower area during what he believed to be taser deployments.

178 The deputies contend that the flashes of light that the inmate witnesses testified they saw must have come from B. Whitlock's flashlight. The inference may reasonably be drawn, however, that if the lights in the shower area were working the flashes of light the witnesses saw were taser deployments.

As it must at summary judgment, the court views the evidence in the light most favorable to Smith and draws all reasonable inferences in her favor. See Matsushita Elec. Indus. Co., 475 U.S. at 587. So doing, the court concludes that factual disputes exist as to whether any use of force against Boggon was appropriate the afternoon of August 29th after he was removed from his cell and whether tasers or the stun shield in fact were used to restrain him. See Skrtich, 280 F.3d at 1300. Because these jury issues exist, which are central to a determination as to whether on August 29, 2005, Lastinger or B. Whitlock violated Boggon's constitutional right to be free of the use of excessive force, qualified immunity is unavailable to them. The deputies' motion for summary judgment on Count X therefore shall be denied.

Count VII: Deputy Day

The court has found that genuine issues of material fact exist as to whether Lastinger and B. Whitlock violated Boggon's constitutional right to be free of excessive force on August 29, 2005. The evidence also is undisputed that Day was present in the shower area and in a position to intervene in the actions taken by Lastinger and B. Whitlock. Smith's claim that Day failed to intervene in the use of force on August 29, 2005, therefore cannot be disposed of on summary judgment. Accordingly, the deputies' motion for summary judgment on Count VII is also denied.

Count XVI: Nurses Helms and L. Whitlock

In Count XVI Smith alleges that Helms and L. Whitlock were deliberately indifferent to Boggon's serious medical needs on August 29th. Helms has testified that she administered the agitation protocol to Boggon without a physician's authorization because she believed an emergency existed and thus she was permitted to do so. Helms and L. Whitlock have also supplied records showing that they conducted medical examinations of Boggon approximately every two hours prior to discovering at approximately 10:50 p.m. that he was unresponsive and not breathing. They also point to evidence from numerous other ECJ personnel who testified they checked or observed Boggon alive between 5:00 p.m. and 10:30 p.m. on the evening of August 29th. Smith notes that it is undisputed that Helms made no effort to seek authorization from a physician to administer the agitation protocol to Boggon. Additionally, relying on the inmate witnesses' testimony, Smith contends that neither the nurses nor anybody else checked on Boggon after he was returned to his cell strapped to the restraint chair, until he was found dead shortly before 11:00 p.m.

With respect to Count XVI, the court again concludes that for purposes of summary judgment Smith has satisfied the subjective prong of the deliberate indifference standard. First, the court finds that no jury question exists with respect to whether Helms' administration of the agitation protocol without obtaining authorization from a physician rises to the level of deliberate indifference. Even if deciding to proceed with the protocol without permission constituted an exercise of poor medical judgment on Helms' part, such conduct was not "`so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Harris, 941 F.2d at 1505. It was not wanton or obdurate. Whitley, 475 U.S. at 319. At most, it was negligent and, as the court has repeatedly noted, negligent acts do not implicate the Constitution. See Farrow, 320 F.3d at 1243. The court further concludes, however, that genuine issues of material fact exist regarding whether the nurses or other ECJ personnel monitored Boggon after he was returned to his cell in the restraint chair. See Bozeman, 422 F.3d at 1272. These jury issues are central to a determination as to whether on August 29, 2005, either Helms or L. Whitlock was deliberately indifferent to Boggon. A jury should determine whether the nurses' conduct was appropriate under the circumstances or whether their actions were "`so grossly incompetent [or] inadequate . . . as to shock the conscience. . . .'" Harris, 941 F.2d at 1505. The motions for summary judgment filed by Helms and L. Whitlock on Count XVI therefore shall be denied.

Defendants McNesby and Prison Health Services ¹⁷⁹

179 A Florida sheriff is a county official who in his official capacity may be subject to § 1983 liability with respect to claims that a custom, practice, or policy of the municipality violate the Constitution. See Hutton v. Strickland, 919 F.2d 1531, 1542 (11th Cir. 1990). When, as here, the defendant is the county sheriff, the suit is effectively an action against the governmental entity he represents, which in this case is Escambia County. See McMillian v. Monroe County, 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997).
Additionally, "when a private entity like PHS contracts with a county to provide medical services to inmates, it performs a function traditionally within the exclusive prerogative of the state." Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (citing, inter alia, Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985)). "In so doing, it becomes the functional equivalent of the municipality." Id.

In Count XIX Smith sues defendant McNesby in both his individual and official capacities for failing to train and supervise ECSO staff. Smith makes a similar claim in Count XVIII against PHS, alleging that it failed to adequately train and supervise the nurses and Szmurlo.

Individual Capacity Liability: Sheriff McNesby

McNesby moves for summary judgment on Smith's individual capacity claim on the grounds that he was not personally involved in the complained-of events and that he is entitled to qualified immunity because he took no action that a reasonable officer would have known violated clearly established law.

"[A] supervisor may be held liable under section 1983 if the supervisor had personal involvement in the constitutional deprivation or if a sufficient causal connection exists between the supervisor's conduct and the constitutional violation." Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992). A "sufficient causal connection" can be established "when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so."Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006). Furthermore, to be sufficient to notify the supervisor, the deprivations must not only be widespread, they also "must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences." Id.

In her complaint Smith does not allege that McNesby personally participated in any of the events involving Boggon and in her response to McNesby's motion for summary judgment she does not cite any evidence of widespread and obvious misuse of tasers or the restraint chair on mentally ill detainees.¹⁸⁰ Smith does not dispute McNesby's statement in his affidavit that he has no personal knowledge of or involvement in the circumstances giving rise to Smith's claim. Also, she has not argued or shown that a causal connection exists between his conduct as a supervisor and the alleged constitutional deprivations involving taser use and prolonged confinement in the restraint chair of a mentally ill inmate. Accordingly, McNesby is entitled to qualified immunity. See Greason v. Kemp, 891 F.2d 829, 836-37 (11th Cir. 1990). Summary judgment on Count XIX, brought against McNesby in his individual capacity, shall be entered.

180 As discussed below, Smith points to evidence that McNesby knew of "at least two prior incidents that put him on notice of de facto policies" condoning the use of excessive force at the ECJ. Doc. 203 at 6. Both incidents, however, involved allegations of inmates being beaten by detention deputies; neither case involved the sort of specific allegations at issue in this case,i.e., the excessive use of tasers and the restraint chair on a mentally ill detainee. As discussed below, to make out a claim of municipal liability the plaintiff's evidence must be specific to a "particular area" of training and supervision. See Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir. 1998).
The court also notes Smith's broad assertion that McNesby has been "on notice for years" that ECSO deputies received inadequate training in "the use of force and restraining devices." Id. at 13. In making this assertion Smith complains that, as of January 2007, she had been prejudiced by her inability to obtain certain deposition testimony and responses to her requests for production. Since January 2007, however, Smith has had the opportunity to conduct additional discovery and has filed additional summary judgment materials which, as may be appropriate, the court has considered.

Municipal Liability Standard

Under the Monell doctrine, to impose § 1983 liability on a municipality for the act of an employee, a plaintiff must demonstrate (1) a violation of a constitutional right, (2) a custom or policy constituting deliberate indifference to that constitutional right, and (3) a causal link between the policy or custom and the violation. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (only if "the execution of a government's policy or custom . . . inflicts the injury [is] the government as an entity responsible under § 1983"); McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citation omitted); see also Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985). Stated differently, "a municipality can be liable under § 1983 only where its policies are the moving force behind the constitutional violation." City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Monell doctrine extends to private § 1983 defendants, such as PHS. See, e.g., Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992).

The Supreme Court has strictly limited municipal liability under § 1983. Municipalities may not be held liable for constitutional deprivations on the theory of respondeat superior.See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001). Municipal liability can be imposed under § 1983 for inadequate training or supervision but only where there is evidence of the municipality's "deliberate indifference" to the rights of the inhabitants that amounts to a policy or custom. See Gold, 151 F.3d at 1350 (quoting City of Canton, 489 U.S. at 388-89). In the Eleventh Circuit, a plaintiff must present "some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action." Gold, 151 F.3d at 1350-51. A municipality's knowledge of a need for training or supervision in a particular area may be demonstrated by evidence of a history of widespread prior abuse or prior incidents in which constitutional rights were similarly violated. Id. at 1351;Church v. City of Huntsville, 30 F.3d 1332, 1342-46 (11th Cir. 1994); see also Popham v. City of Talladega, 908 F.2d 1561, 1564-65 (11th Cir. 1990) (finding no liability for failure to train exists if no pattern of prior incidents notifies the municipality of a need to train). Additionally, in the less common case in which there is no evidence of prior violations, the plaintiff may demonstrate deliberate indifference by presenting evidence of an "obvious need" for a particular type of training. See Young v. City of Augusta, 59 F.3d 1160, 1172 (11th Cir. 1995) (recognizing that deliberate indifference can be demonstrated by showing an "obvious need" to train but finding plaintiff's allegations did not fit within that category of claims); Gold, 151 F.3d at 1352 (noting that one example of an "obvious need" is the use of deadly force where firearms are provided to police officers).

Sheriff McNesby

Smith alleges in Count XIX that prior to Boggon's detention there was a history of widespread abuse at the Jail involving the application of force and restraint devices and methods.¹⁸¹ Smith asserts that this history put McNesby, as Sheriff of Escambia County, on notice of the need for improved training and supervision, that McNesby failed to take appropriate corrective action, and that his failure to act substantially contributed to Boggon's death. McNesby moves for summary judgment, asserting that in August 2005 the training and supervision of ECSO staff was not so inadequate as to amount to a policy of deliberate indifference.

181 Count XIX also contains brief reference to the training and supervision of PHS staff in rendering medical care to inmates who have been "subjected to force and restrained by police." Doc. 99. In her response to McNesby's motion for summary judgment, however, Smith makes no argument attempting to impose liability on McNesby for the deficient training or supervision of PHS staff. Smith appears to have abandoned this theory of liability and, in any event, has offered no evidence in support of it.

The court must first identify the specific constitutional right allegedly infringed, as required under the first prong of the municipal liability analysis. Here, the court shall assume that Boggon's constitutional right not to be subjected to the use of excessive force was violated. That a right may have been violated, however, "does not necessarily mean that [McNesby] is liable for [the violations alleged.]" Vineyard v. County of Murray, 990 F.2d 1207, 1211 (11th Cir. 1993).

Next, the court must consider whether the ECSO had a custom, policy, or practice that constituted deliberate indifference to Boggon's right to be free of the use of excessive force. Smith points to the cases of ECJ inmates Fitz Jones, in 1997, and Mark Bailey, in 1999, as evidence that McNesby knew of the need to train and/or supervise deputies with respect to their use of force. Both Mr. Jones and Mr. Bailey were inmates at the ECJ. According to Smith, both men were beaten by deputies at the Jail, which resulted in Mr. Jones' serious injury and in Mr. Bailey's death. Smith contends these cases "clearly demonstrate that the Sheriff's Office had major lapses" which put McNesby on notice of the need for improved training and supervision.¹⁸² Evidence of these beatings, however, does not demonstrate a need, ignored by McNesby, to train in the "particular area[s]" at issue in this case of taser and restraint chair use on mentally ill inmates. See Gold, 151 F.3d at 1350-51. Thus Smith has not met her burden of showing "some evidence" of McNesby's knowledge of a need for training or supervision, either through evidence of a history of widespread prior abuse or prior incidents in which constitutional rights were similarly violated. Id. at 1351; see also Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990) (finding no liability of sheriff's department for failure to train where there was "no evidence of a history of widespread prior abuse" to put the sheriff on notice that improved training or supervision was needed). Nor has Smith alleged, or come forward with any evidence which shows, that an "obvious need" existed for training in the areas of taser and restraint chair use on mentally ill inmates.See City of Canton, 489 U.S. at 396-97 (finding no obvious need for police officers to be trained in diagnosing mental illness) (O'Connor, J., concurring in part and dissenting in part); Young, 59 F.3d at 1171-72 (finding no obvious need to train jail employees "to recognize the need to remove a mentally ill inmate to a hospital or to dispense medication as prescribed").

182 Doc. 203 at 6. Smith also complains that deputies and inmates who criticized the use of excessive force in this cases were intimidated or ignored, that wrongdoers were not disciplined or their conduct even investigated because McNesby has "dismantled" the use of internal investigations where the FDLE has become involved.

Smith must not only establish that the alleged deficiencies in training and supervision are closely related to the injuries sustained by Boggon but also that such deficiencies actually caused his injuries. Smith has not produced evidence sufficient to create a jury issue as to whether McNesby's taser and restraint chair training was deficient or whether he did not adequately supervise deputies in the use of such devices. Nor has Smith shown that any deficiencies in training and supervision in fact resulted in the injuries suffered by Boggon. See City of Canton, 489 U.S. at 391. In short, Smith has not demonstrated that McNesby was the "moving force" behind the alleged violations of Boggon's rights that occurred during his August 2005 detention or the harm that Boggon sustained. See Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

For the reasons given above, the court concludes that Smith has failed to satisfy the high standard required by Monell, Brown, and City of Canton to hold McNesby responsible for any allegedly unlawful use of force by ECJ detention deputies under a theory of municipal liability. Summary judgment therefore shall be entered in favor of McNesby, in his official capacity, on Count XIX.

Prison Health Services, Inc.

In Count XVIII Smith asserts that PHS was deliberately indifferent to Boggon's serious need for medical attention through its failure to properly train, hire, discipline, and supervise its nurses and Szmurlo. Smith further alleges that PHS was aware of the need to better train or supervise its employees but deliberately chose not to take any corrective action. Additionally, Smith asserts that prior to Boggon's death there was a history of widespread abuse involving the failure to provide adequate medical care by PHS employees which put PHS on notice of the need for improved training or supervision. According to Smith, PHS' failure to act substantially contributed to Boggon's death. PHS seeks summary judgment, arguing that Smith has failed to present evidence linking any allegedly inadequate medical treatment to a policy or custom of PHS that caused or contributed to any violations of Boggon's rights.

As required by the first step of the municipal liability inquiry, the court assumes a violation of Boggon's constitutional right not to be subjected to deliberate indifference to a serious medical need. As previously noted, however, the fact that a right may have been violated "does not necessarily mean that [PHS] is liable for [the violations alleged.]" Vineyard, 990 at 1211.

The court next considers whether PHS had a custom, policy, or practice that constituted deliberate indifference to Boggon's right not to be subjected to deliberate indifference. Smith contends that an investigatory report printed in The New York Times in February 2005 placed PHS on notice of a "systemic" need for better training and supervision of its employees "in many locations" in other jails around the United States in which it provides medical care. According to Smith, the Times' report concluded that substandard care by PHS had contributed to at least fifteen inmate deaths in eleven Florida jails since 1992. Smith also points to the local Independent News and its report that a paranoid schizophrenic, who died in September 2002 shortly after his release from the Jail, had been denied his prescribed medication while incarcerated. Additionally, without adequately citing the record so that the court could locate the references, Smith states that PHS offers no training to its nurses with respect to treating inmates who have been tased or placed in a restraint chair. She also contends that in August 2005 PHS employed a psychiatrist on only a part-time basis and scheduled no mental health counselors to work on weekends, which meant that no mental health assessments might be performed for as long as seventy-two hours after an inmate entered the Jail. According to Smith, the two latter deficiencies contributed to Boggon's not being admitted to the infirmary and not receiving timely and appropriate mental health care. Finally, Smith argues that following Boggon's death the Jail and PHS made numerous improvements to the mental health care provided to inmates at the ECJ, including installation of a padded cell and prohibitions against using the restraint chair or tasers on mentally ill detainees. According to Smith, PHS was aware of the need for such improvements and could have implemented them prior to August 2005.

The court concludes that Smith has not satisfied her burden of showing "some evidence" of PHS' knowledge of a need for better training or supervision, either through evidence of a history of widespread prior abuse or prior incidents in which constitutional rights were similarly violated. Id. at 1351. None of the evidence to which Smith alludes demonstrates that in August 2005 PHS was aware of a need to train its employees in the "particular area[s]" of caring for mentally ill inmates who had been tased or placed in a restraint chair. See Gold, 151 F.3d at 1350-51. Additionally, Smith does not allege and has not shown that an "obvious need" existed for training in the areas of taser and restraint chair use on mentally ill inmates, such that evidence of prior violations would not be required. See City of Canton, 489 U.S. at 396-97 (finding no obvious need for police officers to be trained in diagnosing mental illness) (O'Connor, J., concurring in part and dissenting in part); Young, 59 F.3d at 1171-72 (finding no obvious need to train jail employees "to recognize the need to remove a mentally ill inmate to a hospital or to dispense medication as prescribed"). Smith also has failed to come forward with evidence as to whether PHS' training and supervision of its employees in the area of caring for mentally ill detainees was deficient or that the injuries Boggon sustained were the result of any such deficiencies. See City of Canton, 489 U.S. at 391. Because Smith has not shown that PHS was the "moving force" behind the alleged violations of Boggon's rights or the harm that Boggon sustained, her claim against PHS must fail. See Brown, 520 U.S. at 403. As a final matter, even if the evidence in this case were sufficient to show that PHS acted negligently, simple or even heightened negligence is not sufficient to establish municipal liability. See Brown, 520 U.S. at 407.

Accordingly, the court finds that Smith has failed to satisfy the demanding standard of Monell, Brown, and City of Canton. She thus cannot show that PHS is liable under a theory of municipal liability for any alleged deliberate indifference suffered by Boggon at the hands of PHS employees. Summary judgment therefore shall be entered in favor of PHS on Count XVIII.

Conclusion

For the reasons stated above, Smith's motion for leave to file the NCCHC Report is DENIED. The motions for summary judgment of defendants Gregory, Szmurlo, Merritt, Hankinson, McNesby, and PHS are GRANTED. The motions of Day, B. Whitlock, and Lastinger are DENIED. The motions of defendants Driver, L. Whitlock, Burden, and Helms are GRANTED in part and DENIED in part. The clerk shall be directed to enter summary judgment in favor of the defendants on Counts I; III; V; VI; XI; XII; XIII; XV; XVII; XVIII; and XIX at the conclusion of this case. By separate order the court shall set this matter for trial on the remaining claims presented in Counts IV, VII; VIII; IX; X; XIV; and XVI.

It is therefore ORDERED:

1. Plaintiff Estelle Smith's motion for leave to file the NCCHC Report (doc. 278) is DENIED.

2. The motions for summary judgment of defendants Elaine Gregory (doc. 173); Piotr Andrzej Szmurlo, M.D. (doc. 181); Sheriff Ron McNesby (doc. 182), and Prison Health Services, Inc. (doc. 177) are GRANTED.

3. The deputies' joint motion for summary judgment (doc. 184) is GRANTED, as to defendants James Merritt and Ronald Hankinson only. It is DENIED as to defendants Sherrie Day, Brett D. Whitlock, and Roger Lastinger, and it is DENIED in part as to defendant Scott Driver.

4. The motions for summary judgment filed by defendants Lisa Whitlock (doc. 175), Trudy Burden (doc. 174), and Dana Helms (doc. 172) are GRANTED in part and DENIED in part.

5. The clerk of court shall defer entering summary judgment on Counts I; III; V; VI; XI; XII; XIII; XV; XVII; XVIII; and XIX of the second amended complaint until the conclusion of the entire case.

6. By separate order the court shall set this matter for trial on the remaining claims presented in Counts IV, VII; VIII; IX; X; XIV; and XVI.

DONE and ORDERED.