Opinion
Case No. 5:19cv140-TKW-MJF
2021-06-21
Donald E. TURNER, Jr., as Personal Representative of the Estate of Logan M. Turner, Plaintiff, v. Lt. PHILLIPS, et al., Defendants.
Daniel Mark Soloway, Daniel Jason Finelli, Soloway Law Firm, Pensacola, FL, Gillis Edward Powell, Jr, Powell Powell & Powell, Crestview, FL, for Plaintiff. Alicia D. Carothers, Alyssa M. Yarbrough, William G. Warner, Timothy M. Warner, Warner Law Firm, Panama City, FL, Jennifer Alane Hawkins, Panama City Beach, FL, for Defendants.
Daniel Mark Soloway, Daniel Jason Finelli, Soloway Law Firm, Pensacola, FL, Gillis Edward Powell, Jr, Powell Powell & Powell, Crestview, FL, for Plaintiff.
Alicia D. Carothers, Alyssa M. Yarbrough, William G. Warner, Timothy M. Warner, Warner Law Firm, Panama City, FL, Jennifer Alane Hawkins, Panama City Beach, FL, for Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE
This case is before the Court based on the motions for summary judgment filed by Defendant Tommy Ford (Sheriff Ford) (Doc. 70); Defendants Kenneth Phillips (Lt. Phillips), Joseph Mastro (Sgt. Mastro), and Mary Jane Ridley (Nurse Ridley) (Doc. 71); Defendants Freddie Furman, II (DO Furman) and Tyshawn Potter (DS Potter) (Doc. 72); and Defendant Jack Howell (MHC Howell) (Doc. 73). Upon due consideration of the motions, Plaintiff's responses in opposition (Docs. 80, 81), Defendants’ replies (Docs. 88, 91, 92), and the voluminous evidence submitted by the parties (attachments to Docs. 68, 69, 80, 81, 84, 85), the Court finds for the reasons that follow that the motions are due to be granted in part and denied in part.
Detention Officer.
Detention Specialist.
Mental Health Coordinator.
The attachments contained over 5,000 pages, although there were multiple copies of some of the documents.
Case Overview
This is a prison suicide case. Plaintiff is the personal representative of the estate of Logan Turner who was a pre-trial detainee at the Bay County Jail when, on May 18, 2018, he hanged himself in his cell. Defendants are the Bay County Sheriff and six jail employees who, according to Plaintiff, knew that Mr. Turner was suicidal but did essentially nothing to prevent him from harming himself. Plaintiff asserts claims against the Defendants under 42 U.S.C. § 1983 and state law. The main issue in dispute is whether Defendants knew that Mr. Turner was suicidal—or, more specifically, whether they had subjective knowledge that there was a "strong likelihood" that Mr. Turner would harm himself when he did.
Facts
Mr. Turner (age 29) was arrested on April 18, 2018, around 10:15 p.m. after giving a false name to a law enforcement officer during a traffic stop. He was found in possession of methamphetamine and drug paraphernalia, and he admitted to using "meth" on the day of his arrest.
While being transported to the Bay County Jail, Mr. Turner stated that "[he] will kill [him]self if [he] ha[s] to be locked up," and that he wanted to die due to the charges against him and because "drug dealers," "law enforcement," and "everyone else" wanted him dead.
During the intake process at the jail in the early morning hours of April 19, Mr. Turner informed the jail staff that he had previously been hospitalized for mental health problems and that he had made one or more suicide attempts the week prior to his arrest. As a result, Mr. Turner was placed on a Baker Act hold, admitted to the jail's most restrictive suicide precaution protocol (SP-1) and referred for a mental health evaluation.
Ch. 394, pt. I, Fla. Stat. (providing for the involuntary commitment of persons who pose a danger to themselves or others).
Later that day, MHC Howell conducted a mental health assessment of Mr. Turner. MHC Howell documented that Mr. Turner had previous inpatient psychiatric care, drug or alcohol dependence, and suicide attempts or suicidal ideations that came to his "mind a lot."
In accordance with jail policy, mental health staff regularly met with Mr. Turner while he was on SP-1 precautions. MHC Howell personally met with Mr. Turner on April 19, 25, 26, 30, and May 1.
On April 27, Mr. Turner told a mental health counselor intern that he was aggravated because he was not suicidal and that he wanted to get out of suicide precautions.
Four days later, on May 1, MHC Howell recommended to the jail's Suicide Precaution Committee that Mr. Turner should be removed from suicide precautions, subject to the agreement of the jail psychiatrist, Dr. Vicki Alberts. The recommendation was based on the unusually long time that Mr. Turner had been on SP-1 precautions; the absence of any suicidal behavior during his confinement; his consistent and continuing active denials that he was suicidal; and MHC Howell's general interactions with Mr. Turner
The Committee is comprised of five members (the chief of security, the chief segregation officer, a classification counselor, a member of the medical staff, and a member of the mental health staff) and is required to review and approve all recommendations for an inmate to be released from suicide precautions.
The Committee convened later that day and tentatively approved Mr. Turner's release from suicide precautions, subject to Dr. Albert's assessment that was scheduled to take place later that day. Sgt. Mastro (filling in for the chief of security) was a member of the Committee that recommended Mr. Turner's release from suicide precautions.
The same day, May 1, Dr. Alberts conducted a psychiatric evaluation of Mr. Turner and agreed that he no longer needed suicide precaution placement. She authorized the Committee to determine where Mr. Turner would be placed, and Mr. Turner was moved to general population housing that day.
Eight days later, on May 9, the mental health counselor intern met with Mr. Turner for a follow-up mental health assessment. The intern noted the need to discuss a medication adjustment with the jail doctor because Mr. Turner requested an antipsychotic due to "continued paranoia."
On May 15, Mr. Turner submitted a "Sick Call Request" for chronic neck and back pain and a possible urinary tract infection. The next day, medical staff evaluated Mr. Turner, treated him, and prescribed him medication.
On Friday, May 18, after the 2:00 p.m. count, Mr. Turner approached DO Marcus Roberts and requested to talk to the "chief of security" because Mr. Turner was concerned that he was HIV positive and would start an epidemic at the jail. DO Roberts explained to Mr. Turner that medical staff would see him the following morning if he filled out the requisite forms. At 3:00 p.m., Mr. Turner repeated his request to DO Roberts. Nurse Ridley was nearby, and DO Roberts asked her to take a look at Mr. Turner because he was acting strange and disruptive. Nurse Ridley testified that she checked Mr. Turner's vitals, but could not understand what he was saying because he was crying so hard.
Nurse Ridley referred Mr. Turner for a mental health assessment with MHC Howell. Mr. Turner was taken to the mental health unit about 30 minutes later where he was assessed by MHC Howell.
MHC Howell documented that Mr. Turner's affect, mood, and appearance were not within normal limits and that he stated that he could not sleep, but Mr. Turner assured MHC Howell that he was not suicidal and told him that he did not want to go back on suicide watch. MHC Howell did not simply take Mr. Turner's word that he was not suicidal. Instead, he determined that Mr. Turner could return to his dorm in general population because after "meet[ing] with Turner over an extended period, attempting to ascertain and understand why he had become so upset ... and then engag[ing] with him on those topics, what they meant, and how they made him feel," MHC Howell concluded that Mr. Turner was not suicidal and did not require specialized suicide housing because he "had calmed down and was future-oriented and did not express any thoughts or feelings of hopelessness or helplessness."
DO Roberts escorted Mr. Turner back to the general population dorm a little after 4:00 p.m.
Approximately one hour later, DO Roberts found Mr. Turner slumped over on the floor and unresponsive to verbal commands. DO Roberts testified that he performed a sternum rub technique, which caused Mr. Turner to wake up and become "disruptive." As a result, DO Roberts restrained Mr. Turner and informed his supervisor, Lt. Phillips, that Mr. Turner was paranoid that he was HIV positive and going to start an epidemic at the Jail; had spoken with mental health and medical staff multiple times that day; and was becoming agitated and unable to focus. DO Roberts suggested, and Lt. Phillips agreed, that Mr. Turner be placed on behavioral observation.
According to jail policy, behavioral observation is "[t]he close observation of an inmate exhibiting behavior indicative of a mental condition that poses a threat to the safety and security of the inmate, inmate population and/or daily operation of the facility." Doc. 68-8, at 1. Behavioral observation is appropriate for "[i]nmates that have exhibited bizarre behavior due to a mental condition (not suicidal or medical in nature) and therefore could be a security risk may be placed in Behavioral Observation," but it is not to be utilized for inmates at a risk for self-harm or as a step down from suicide precaution. Id. at 5.
DO Roberts took Mr. Turner back to the medical unit to have a pre-segregation health evaluation, as required by jail policy. The evaluation was conducted by Nurse Ridley, who was told by DO Roberts that Mr. Turner was being disruptive and was being placed on behavioral observation because he (Mr. Turner) was "not safe."
Before conducting the evaluation, Nurse Ridley retrieved Mr. Turner's medical chart from the mental health unit. While there, she informed MHC Howell that Mr. Turner was being placed on behavioral observation, to which MHC Howell responded that that he intended to follow up with Mr. Turner on Monday.
MHC Howell did not seek to follow-up with Mr. Turner at that time "because [he] had just met with Turner less than an hour before, because [he] already planned to meet with Turner again on Monday morning, and because [he] did not believe that placement in more secure housing with greater supervision posed a risk to Turner."
MHC Howell left the jail for the weekend shortly after his interaction with Nurse Ridley.
During her evaluation of Mr. Turner, Nurse Ridley directly asked him if he was suicidal or homicidal and Mr. Turner answered that he was not. Nurse Ridley documented that Mr. Turner suffered from major depression, social anxiety, and "opioid use—amphetamine use"; was tearful; and had not slept for 3 days.
Nurse Ridley finished the evaluation at approximately 5:16 p.m. and cleared Mr. Turner for segregation. DO Roberts then escorted Mr. Turner to behavioral observation in the C-4 dorm. Nurse Ridley left the jail around 6:00 p.m. and had no further interactions with Mr. Turner
A C-4 dorm pod video recording (Doc. 68-72) captured the duration of Mr. Turner's time in behavioral observation. The recording shows the common area and the exterior of the cell doors within the C-4 dorm pod and could be viewed in real time in the C-dorm control room.
Although there is a factual dispute on this point, the evidence viewed in the light most favorable to Plaintiff indicates that the real time video recording could be viewed on the monitors in the control room post. Compare Doc. 80-5, at 25-26, 28 (Sgt. Mastro's deposition testimony that he did not have access to the dorm pod video in real time and that he could only see Mr. Turner from the waist up from his point of view in the control room) with Doc. 68-4 at 2-3 (declaration of the jail's IT Administrator stating that the video recording could be viewed on monitors in the control room) and Doc. 85-22, at 20-22 (DS Potter's deposition testimony regarding the live view cameras that were monitored in the control room).
At approximately 5:21 p.m., Mr. Turner is placed in the shower cell of the C-4 dorm. He was wearing a striped (general population) uniform at the time, but an inmate orderly brought him an orange (behavioral observation) uniform.
Within minutes of being placed in the shower cell, Mr. Turner crouched on the floor and began moaning and crying loudly. He continued to crouch and lay on the floor until 5:33 p.m., when he stood up, took off his striped shirt and threw it on the floor. Shortly thereafter, Mr. Turner began to have outbursts of loud and sometimes unintelligible shouting. Amongst his screams, Mr. Turner can be heard yelling at varying volume: "please"; "you people are unbelievable"; and "I'm obviously in need here and you put me in by myself ... evil."
At 5:36 p.m., Mr. Turner is shown changing into the orange pants and kicking his striped pants on the floor. Mr. Turner then proceeded to forcefully mule kick the shower cell door and scream again. He can be heard shouting "take me to a hospital"; "take me to a fucking hospital now"; "take me to a hospital now"; "take me to a hospital or I swear to god when I get out of here"; and "you're killing me." He then proceeded to lay on the floor until 5:42 p.m., when he twice shouted, "you're fucking with my head," followed by "please anybody please," with more frantic cries and loud screams.
Sgt. Mastro, the shift supervisor, heard Mr. Turner mule kicking and yelling from the C-dorm control room. Sgt. Mastro testified that he could not understand what Mr. Turner was saying; that he did not realize that Mr. Turner was an inmate whose status he had reviewed while serving on the Suicide Precaution Committee 17 days earlier; and that it was not unusual for inmates in behavioral observation to yell, scream, and beat on doors.
At 5:44 p.m., while shouting unintelligibly, Mr. Turner can be heard crying out, "bring me home."
At 5:45:02 p.m., Mr. Turner picked up his striped pants off of the floor and walked to the shower cell door. Using the bar over the door, Mr. Turner tied one pant leg in a knot while the other pant leg hung down in a way that it could potentially be used as a noose.
There is a factual dispute as to whether the pants were going to be used as a noose, but in the light most favorable to Plaintiff, the video footage and other record evidence creates a reasonable inference that the pants were a going to be used as a noose.
Inmate Letson, an orderly working in the dorm, saw Mr. Turner tying the pants and immediately walked over to him. Sgt. Mastro also observed Mr. Turner's behavior from the control room, and told Lt. Phillips to go to the shower cell and speak with Mr. Turner to see what was going on because "he [Mr. Turner] may be making a noose or something."
There is a factual dispute as to whether Sgt. Mastro actually said "noose." Lt. Phillips testified that Sgt. Mastro used the word "noose," see Doc. 84-1 at 63-65, 67, 91, but Sgt. Mastro testified that he did not say "noose," rather, he told Lt. Phillips to go in and look at what was going on. Doc. 80-5 at 22-23. Viewing the facts in the light most favorable to Plaintiff, Sgt. Mastro said "noose."
Around 5:45:12 p.m., Inmate Letson and Mr. Turner appear to begin conversing. They are still talking when, at 5:45:25 p.m., Lt. Phillips is shown walking into the C-4 dorm pod. At approximately 5:45:37 p.m., Inmate Letson walked away from Mr. Turner as Lt. Phillips walks up behind him.
Inmate Letson later told jail investigators that Mr. Turner was threatening to hang himself and that he (Inmate Letson) had talked him out of it. Inmate Letson did not tell Lt. Phillips what Mr. Turner said because he assumed that Lt. Phillips had heard their conversation because he was so close to them.
There is a factual dispute as to whether Lt. Phillips heard Mr. Turner and Inmate Letson talking, with Lt. Phillips testifying that he did not hear the conversation and Inmate Letson stating that Lt. Phillips was so close that he had to have heard the conversation. Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could find that Lt. Phillips heard the conversation between Mr. Turner and Inmate Letson.
After leaving the C-4 dorm pod, Inmate Letson went to the control room and told Sgt. Mastro that he had just diverted a "major incident." Sgt. Mastro did not ask Inmate Letson what he was talking about.
At 5:45:38 p.m., Lt. Phillips is shown talking to Mr. Turner at the shower cell door. Lt. Phillips testified that he first asked Mr. Turner if he was suicidal or trying to hurt himself and Mr. Turner responded "no." Lt. Phillips then asked Mr. Turner what was going on and Mr. Turner said that he needed to make a phone call so he could bond out of the jail.
While talking to Mr. Turner, Lt. Phillips untied the pants from the door and threw them outside of the cell. Lt. Phillips testified that he did this because hanging clothes on the door was a violation of the rules and because Mr. Turner no longer needed the striped pants. Lt. Phillips did not think that the pants were going to be used as a noose, rather, he thought that Mr. Turner was just hanging up the pants to keep them dry or to get attention.
By 5:47 p.m., Lt. Phillips had walked away from the shower cell and appeared to be taking a phone call.
At 5:47:32, a DO escorted Mr. Turner out of the shower cell and placed him in an individual cell in the C-4 pod. Each cell, including the cell in which Mr. Turner was placed, was equipped with a camera which allowed officers to view inside the cell in real time, but the footage was not recorded. Once in the cell, the view of Mr. Turner from the dorm pod camera is largely obstructed, although he is periodically visible at times when he walked in front of the cell door.
At 5:49 p.m., Lt. Phillips left the dorm and returned to the control room. Once there, Sgt. Mastro asked Lt. Phillips, "is everything all right," and "[a]re we good with what we're going to do with [Mr. Turner]?" Lt. Phillips answered that Mr. Turner was "fine," he was screaming about calling his grandmother, and that no move was necessary.
Eleven minutes later, at 6:00 p.m., Sgt. Mastro and Lt. Phillips went off duty and were replaced in the control room by DO Furman and DS Potter.
When DO Furman came on duty, Sgt. Mastro briefed him about Mr. Turner, stating that Mr. Turner had been a disruptive inmate for the day and was placed on behavioral observation.
At approximately, 6:30 p.m., Inmate Meachum, an orderly working in the C Dorm, informed DO Furman that he had heard from another inmate that Mr. Turner was going to harm himself.
Shortly thereafter, DO Furman called Sgt. Mastro at home and told him what Inmate Meachum had said. Sgt. Mastro advised DO Furman that Lt. Phillips talked to Mr. Turner, the situation was handled, Mr. Turner did not try to hurt himself, and that Mr. Turner needed to stay where he was.
The exact phrasing DO Furman used is unclear, but Sgt. Mastro testified that DO Furman said that Mr. Turner had (past tense) tried to kill himself, not that he was going to do so.
DO Furman told DS Potter about what Inmate Meachum said, and he told DO Furman to keep a closer eye on Mr. Turner in case "anything" happened. As a result, DS Potter tried to monitor Mr. Turner "a little bit more than the others" although it is not entirely clear what, if anything, more he (or DO Furman) actually did.
At approximately 8:15 p.m., Mr. Turner is heard on the video shouting and banging on the front of the cell door. He proceeded to scream unintelligibly for the next two minutes, at one-point yelling "I'm dying in here." Approximately thirty seconds later, a correctional officer is seen walking to Mr. Turner's cell and checking on him. After spending approximately one minute at Mr. Turner's cell door, the correctional officer leaves and walks around the rest of the pod.
The last time Mr. Turner was seen moving around his cell was at approximately 8:20 p.m. The video does not clearly show what he was doing, although Plaintiff's expert speculated that he was tying his bedsheets in knots because the video appears to show him handling a sheet.
Something orange appeared on the floor of the cell at 8:24 p.m. It is unclear what it is, but Plaintiff's expert speculated that it was Mr. Turner's leg. Whatever it was, it did not move after it was first seen.
DO Potter performed a "camera scan" of the cells in the C-4 pod at 8:30 p.m., and DO Furman walked past each cell at 8:46 p.m. Neither DO Potter nor DO Furman observed anything out of the ordinary in Mr. Turner's cell on these occasions and DO Furman testified that Mr. Turner was alive and well ("leaning against the wall standing with his head against the wall and his arms up") when he looked in the cell.
The logbook in the control room indicates that camera scans were conducted every 15 minutes starting at 7:15 p.m. However, for reasons not explained by the record, no camera scan was done at 8:45 p.m.
Although Plaintiff's expert opined that DO Furman must be lying based on the expert's speculation that Mr. Turner committed suicide at some point between 8:20 and 8:24 p.m. and the fact that DO Furman only looked in Mr. Turner's cell for about a second, there is no evidence contradicting DO Furman's testimony that he saw Plaintiff alive and well at 8:46 p.m.
At approximately, 8:55 p.m., while delivering medication to inmates in the pod, DO Furman and a nurse discovered Mr. Turner hanging inside his cell. He had a bed sheet tied around his neck, looped through two holes in the metal frame of the top bunk in his cell and tied underneath. DO Furman and the nurse radioed a "code purple" and he and the nurse immediately began performing life-saving measures on Mr. Turner.
Bay County Emergency Medical Services arrived at approximately 9:07 p.m. and within three minutes, took Mr. Turner out of the C-4 pod while continuing to perform chest compressions.
Mr. Turner was transported to Bay Medical Center, where he was declared brain dead and died two days later.
Procedural History
In May 2019, Plaintiff filed suit against Defendants in this Court. The complaint, as amended (Doc. 28), asserted claims against Defendants under 42 U.S.C. § 1983 and state law in their individual (Lt. Phillips, Sgt. Mastro, Nurse Ridley, DO Furman, DS Potter, and MHC Howell) and official (Sheriff Ford) capacities. More specifically, the amended complaint alleged § 1983 "failure to protect" claims against the Individual Defendants (Counts I, III, and IV); a § 1983 Monell claim against Sheriff Ford (Count II); a state law negligence claim against Sheriff Ford (Count VI); and a claim under the Florida Wrongful Death Act against the Individual Defendants (Count VII).
Collectively, these defendants will be referred to as the "Individual Defendants."
The amended complaint also asserted official capacity claims against Sgt. Mastro and MHC Howell, but the Court dismissed those claims on the parties’ joint motion. See Doc. 43.
Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
§§ 768.16 - .26, Fla. Stat.
Defendants answered the amended complaint and the parties engaged in an extended period of discovery. After discovery closed, Defendants moved for summary judgment on all counts alleged in the amended complaint. The motions were fully briefed and are ripe for rulings. No hearing is necessary to rule on the motions.
Summary Judgment Standard
"The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party "bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Baas v. Fewless , 886 F.3d 1088, 1091 (11th Cir. 2018) (citations omitted). Once the moving party has met its burden, the non-moving party must put forward specific facts showing a genuine issue for trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue of fact is material if it would change the outcome of the litigation, and a dispute about a material fact is genuine if the record evidence could lead a rational factfinder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Generally, when ruling on a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in favor of that party. Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009). However, in cases where video evidence is available, the Court views the facts in accordance with that video evidence, so long as "there are no allegations or indications that video evidence has been doctored, or that the video shows something different [from] what actually happened." Varnadore v. Merritt , 778 F. App'x 808, 812 (11th Cir. 2019) (citing Scott v. Harris , 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).
Analysis
The Court will first address the § 1983 claims against the Individual Defendants. Next, the Court will address the Monell claim against Sheriff Ford. Finally, the Court will address the state law claims.
§ 1983 Claims Against the Individual Defendants (Counts I, III, IV)
Pretrial detainees like Mr. Turner "have a Fourteenth Amendment due process right to ... be protected from self-inflicted injuries, including suicide." See Greenway v. Southern Health Partners, Inc. , 827 F. App'x 952, 958 (11th Cir. 2020) (quoting Cook ex rel. Est. of Tessier v. Sheriff , 402 F.3d 1092, 1115 (11th Cir. 2005) ). To prevail on a prison suicide claim under § 1983, "the plaintiff must show that the jail official displayed ‘deliberate indifference’ to the prisoner's taking of his own life." Cagle v. Sutherland , 334 F.3d 980, 986 (11th Cir. 2003) (quoting Edwards v. Gilbert , 867 F.2d 1271, 1274-75 (11th Cir. 1989) ).
To establish a claim of deliberate indifference, the plaintiff must prove "that the defendant had (1) subjective knowledge of a risk of serious harm; and (2) disregarded that risk; (3) by conduct that is more than mere negligence." Greenway , 827 F. App'x at 958 (quoting Snow ex rel. Snow v. City of Citronelle , 420 F.3d 1262, 1268 (11th Cir. 2005) ).
"[I]n a prison suicide case, deliberate indifference requires that the defendant deliberately disregard a strong likelihood rather than a mere possibility that the self-infliction of harm will occur." Id. (quoting Cook , 402 F.3d at 1115 ). "The mere opportunity for suicide, without more, is clearly insufficient to impose liability on those charged with the care of prisoners." Id. (quoting Cagle , 334 F.3d at 986 ).
"Absent knowledge of a detainee's suicidal tendencies, ... failure to prevent suicide has never been held to constitute deliberate indifference." Id. (quoting Popham v. City of Talladega , 908 F.2d 1561, 1564 (11th Cir. 1990) ). "Case law indicates that a ‘strong likelihood’ of suicide does not exist ... unless all of the following factors are present: (1) the inmate previously had threatened or attempted suicide; (2) that prior threat or attempt was known to the defendants; (3) the prior threat or attempt was somewhat recent; and, (4) the prior threat or attempt appeared genuine." Greffey v. State of Ala. Dep't of Corr. , 996 F. Supp. 1368, 1382 (N.D. Ala. 1998).
"Where prison personnel directly responsible for inmate care have knowledge that an inmate has attempted, or even threatened, suicide, their failure to take steps to prevent that inmate from committing suicide can amount to deliberate indifference." Greason v. Kemp , 891 F.2d 829, 835-36 (11th Cir. 1990) ; see Farmer v. Brennan , 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ("[A]cting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.").
Here, the Individual Defendants argue that they are entitled to summary judgment on the "failure to protect" claims in the amended complaint because there is no evidence from which a reasonable jury could find that they had the requisite subjective knowledge of a strong likelihood that Mr. Turner would commit suicide on May 18. The Court agrees with respect to some—but not all—of the Individual Defendants, as explained below.
"Each individual [d]efendant must be judged separately and on the basis of what that person knows." See Jackson , 787 F.3d at 1353 (quoting Burnette v. Taylor , 533 F.3d 1325, 1331 (11th Cir. 2008) ).
Nurse Ridley
With respect to Nurse Ridley, the extent of her involvement with Mr. Turner is limited to two interactions on May 18—the first being when she briefly met with Mr. Turner and referred him to see MHC Howell; and the second when she conducted Mr. Turner's pre-segregation health evaluation.
Although Nurse Ridley was aware that Mr. Turner had mental health issues and observed him crying and upset, that is insufficient to establish that Nurse Ridley had subjective awareness of a strong likelihood that Mr. Turner would commit suicide. See Popham , 908 F.2d at 1562-64 (explaining that the fact that the inmate was "emotional, depressed, and angry" was not enough to indicate a strong likelihood that self-inflicted harm would occur). Moreover, as a part of the pre-segregation evaluation, Nurse Ridley directly asked Mr. Turner if he was suicidal or homicidal and he answered that he was not.
The Court has not overlooked Plaintiff's argument that Nurse Ridley had access to Mr. Turner's medical records and could have seen that Mr. Turner was previously on suicide precautions. However, even if Nurse Ridley had reviewed Mr. Turner's history—and there is no evidence that she did—the fact that Mr. Turner had attempted suicide the week prior to his arrest (which is more than a month before he was seen by Nurse Ridley) or that he was released from suicide precautions on May 1, does not show a strong likelihood that Mr. Turner would commit suicide when he did. See Salter v. Mitchell , 711 F. App'x 530, 541 (11th Cir. 2017) (holding that the defendant's knowledge that the inmate attempted suicide 12 days earlier was insufficient to show subjective knowledge of a serious risk of suicide because she "had not witnessed any behavioral issues in the three days leading up to the suicide").
To the extent Plaintiff claims that Mr. Turner suffered a constitutional violation on May 1 when he was released from the SP-1 precautions (and it is not entirely clear that he is making such as claim), there is no evidence from which a reasonable jury could find that any of the defendants were deliberately indifferent to Mr. Turner's mental health condition or the risk that he would harm himself if he was removed from suicide precautions and placed in general population because, at worst, the decision to remove Mr. Turner from suicide precaution was based on a negligent assessment of his condition by MHC Howell and/or Dr. Alberts. Deliberate indifference requires "conduct that is more than mere negligence." Greenway , 827 F. App'x at 958. Moreover, as to Nurse Ridley, there is no evidence that she had any involvement in that decision. The same is true for Lt. Phillips, DO Furman, and DS Potter; and although Sgt. Mastro served on the Suicide Prevention Committee, he is not a mental health professional and there is no evidence that he had any prior involvement with Mr. Turner, so he cannot be faulted for relying on MHC Howell's and Dr. Alberts’ professional assessments that Mr. Turner was not suicidal when the Committee approved his release from the SP-1 precautions.
In sum, based on the two limited interactions Nurse Ridley had with Mr. Turner, there is no evidence from which a reasonable jury could find that she had the requisite subjective knowledge of a strong likelihood that Mr. Turner would commit suicide when he did. Accordingly, Nurse Ridley is entitled to summary judgment on the § 1983 claim against her in Count III of the amended complaint.
MHC Howell
With respect to MHC Howell, Plaintiff contends that when he found out on May 18 that Mr. Turner was being placed on behavioral observation, he knew that it was "possible" that he was wrong about his prior determination that Mr. Turner was not a suicide risk. See Doc. 80, at 70. This is insufficient to establish liability as a matter of law because, as explained above, deliberate indifference in a prison suicide case requires that the defendant disregard a "strong likelihood" (rather than a "mere possibility") that the self-infliction of harm will occur. Moreover, based on the undisputed evidence, no reasonable jury could find that MHC Howell was subjectively aware that there was a strong likelihood that Mr. Turner would commit suicide when he did.
The Court did not overlook that MHC Howell counseled Mr. Turner on May 18 after Nurse Ridley referred him for a mental health evaluation. However, Mr. Turner told MHC Howell during the session that he was not suicidal and did not want to go back on suicide precautions and MHC Howell concluded based on the mental health assessment he conducted during the counseling session that Mr. Turner was not suicidal—he was just upset and agitated. See Holland v. City of Atmore , 168 F.Supp.2d 1303, 1310-11 (S.D. Ala. 2001) ("Courts, including the Eleventh Circuit have rejected the notion that circumstances such as intoxication, sadness, anger, concern or violence reflect a strong likelihood of imminent suicide.") (collecting cases).
Nor did the Court overlook that approximately one hour after the counseling session, MHC Howell learned that Mr. Turner was being placed on behavioral observation. However, it is undisputed that behavioral observation is not to be utilized for inmates that are at risk of self-harm, and Plaintiff has failed to point to any record evidence showing that MHC Howell knew (or even that he should have known) from the fact that Mr. Turner was being transferred to behavioral observation that there was a strong likelihood that Mr. Turner would commit suicide when he did.
Likewise, for the same reasons explained above, the fact that MHC Howell was aware of Mr. Turner's medical history, including that Mr. Turner made a suicide threat one month earlier and was released from suicide precautions over two weeks earlier, is not sufficient to show a subjective awareness of a strong likelihood that Mr. Turner was suicidal on May 18. Accordingly, because there is no evidence from which a reasonable jury could find that MHC Howell had subjective knowledge of a strong likelihood that Mr. Turner would commit suicide when he did, MHC Howell is entitled to summary judgment on the § 1983 claim against him in Count IV of the amended complaint.
DO Furman and DS Potter
DO Furman and DS Potter were on-duty when Mr. Turner committed suicide, but there is no evidence from which a reasonable jury could find that they were aware that Mr. Turner was suicidal because they had no interactions with him before their shift started on May 18 and they had no reason to believe that he made a genuine attempt to commit suicide earlier in the day.
The Court did not overlook that DO Furman was told by an inmate a half hour after he started his shift that Mr. Turner was going to or had attempted to harm himself. However, the inmate who reported this information DO Furman had no personal knowledge of the situation and shared no further details. Moreover, DO Furman promptly called Sgt. Mastro—the supervisor on duty for the immediately prior shift—and apprised Sgt. Mastro of what he had heard. Sgt. Mastro told DO Furman that he was aware of the situation; it had been handled by Lt. Phillips during the previous shift; Mr. Turner did not try to hurt himself; and Mr. Turner needed to stay where he was on behavioral observation. Thus, as far as DO Furman knew, the information provided by the inmate was inaccurate and Mr. Turner was not suicidal.
Nor did the Court overlook that DO Furman asked DS Potter to keep a closer eye on Mr. Turner. Putting aside the fact that DO Furman testified that he made this request because Mr. Turner was disruptive, not because he thought Mr. Turner would harm himself, no reasonable jury could find based on this request that DS Potter knew that Mr. Turner was suicidal. Indeed, based on the information that DO Furman conveyed to him from Sgt. Mastro, there would have been no reason for DS Potter to believe there was a strong likelihood that Mr. Turner would commit suicide when he did.
In sum, even when the evidence is viewed in the light most favorable to Plaintiff, no jury could reasonably find that DO Furman or DS Potter had subjective knowledge of a strong likelihood that Mr. Turner was suicidal. Their knowledge of what amounts to a rumor—which was discredited by Sgt. Mastro—allows for an inference of, at most, no more than the mere possibility that Mr. Turner would commit self-harm. See Greenway , 827 F. App'x at 960 ("The assertions of suicide risk here by a relative, unsupported by any detail, show only a ‘mere possibility of suicide.’ ").
The Court did not overlook Plaintiff's argument that DO Furman and DS Potter had subjective knowledge of a strong likelihood because Mr. Turner was "deteriorating" before their eyes. However, the undisputed evidence does not support this claim because the dorm pod video recording shows that Mr. Turner was mostly calm for the duration of the night shift, except for a few shouting outbursts. Moreover, there is no evidence in the record that shows that in the course of performing their duties, either DO Furman or DS Potter actually observed any alarming behavior (such as Mr. Turner preparing to commit suicide by tying his bedsheets into knots) that would make them subjectively aware of a strong likelihood that Mr. Turner would commit suicide.
On the latter point, the Court did not overlook the testimony of Plaintiff's expert witness that Mr. Turner can be seen on the video (at 8:20 p.m.) tying knots in his sheets and shortly thereafter Mr. Turner's leg comes into view of the camera where it stays until DO Furman and the nurse enter the cell at 8:55 p.m. However, the video recording does not clearly show what Plaintiff's expert claims and, aside from the expert's speculation about what the video shows, there is no evidence contradicting DO Furman's testimony that he saw Plaintiff was alive and well at 8:46 p.m.
Finally, the Court did not overlook the testimony of Plaintiff's expert that DO Furman and DS Potter would have seen Mr. Turner hanging himself had they more closely monitored him on the live stream video or when they were making their rounds; however, the adequacy of the monitoring goes to their alleged deliberate indifference rather than their subjective knowledge of the risk that Mr. Turner would harm himself and, as explained above, there is no evidence from which a reasonable jury could find that DO Furman and DS Potter knew that Mr. Turner was suicidal.
Moreover, the monitoring done by DO Furman and DS Potter was not constitutionally inadequate because camera scans were conducted every 15 minutes and rounds were conducted every 30 minutes. See Grochowski v. Clayton Cnty. , 961 F.3d 1311, 1321 (11th Cir. 2020) (explaining that the jail's practice of conducting hourly rounds was constitutionally adequate); Salter , 711 F. App'x at 541 (finding that the jail's policy of monitoring inmates with mental health problems every 15 to 30 minutes was constitutionally adequate); Popham , 908 F.2d at 1565 (stating that a failure to watch prisoners at all times does not constitute deliberate indifference). Indeed, even if DO Furman's 8:46 p.m. observation was disregarded, there was only a 35-minute period (from 8:20 to 8:55 p.m.) that Mr. Turner was not seen on camera or in person.
Accordingly, DO Furman and DS Potter are entitled to summary judgment on the § 1983 claims against them in Count I of the amended complaint.
Lt. Phillips and Sgt. Mastro
Lt. Phillips and Sgt. Mastro went off duty two hours before Mr. Turner committed suicide, but Plaintiff argues that there is evidence from which a reasonable jury could find that they did were subjectively aware of a strong likelihood that Mr. Turner would commit suicide when he did, yet did essentially nothing to prevent it while they were on duty. The Court agrees.
The evidence, in the light most favorable to Plaintiff, shows that Lt. Phillips and Sgt. Mastro saw Mr. Turner make a genuine attempt to commit suicide by tying his pants on the top of door of the shower cell. See Allen v. Freeman , 2013 WL 3356040 at *10 (S.D. Ga. July 3, 2013) ("The shower door support bar was located at the height of six feet and ten inches, which was clearly sufficient for [the inmate] to attempt suicide. The fact that the sheet was tied down strengthens the likelihood of suicide. In the jail setting and at that specific location, a tied-down sheet is an obvious instrument of suicide."); Greffey , 996 F. Supp. at 1382 (explaining that the prior suicide threat or attempt must appear to be genuine). The evidence further establishes that Lt. Phillips and Sgt. Mastro knew that this was a suicide attempt (or at least preparation for a suicide attempt) because Sgt. Mastro specifically described the pants as a "noose," Lt. Phillips overhead Inmate Letson talking Mr. Turner out of hanging himself, and the first thing that Lt. Phillips asked Mr. Turner when he got to the shower cell was whether he was trying to harm himself.
The Court did not overlook Lt. Phillips’ testimony that Mr. Turner stated that he was not suicidal and was "offended" when Lt. Phillips asked him if he was going to harm himself. Nevertheless, the surrounding circumstances in this case—namely, that Lt. Phillips observed Mr. Turner make an obvious instrument of suicide; overheard Inmate Letson talking Mr. Turner out of hanging himself; and was directed by Sgt. Mastro to check on Mr. Turner because it looked like he had made a noose—allow for the reasonable inference that Lt. Phillips would think that Mr. Turner was lying about not having suicidal thoughts. Cf. Greenway , 827 F. App'x at 959 ("Though Tammy may have given false answers to some questions in the screening, Kenneth has pointed to no evidence to show that Sergeant Langston would think Tammy was lying about not having suicidal thoughts. Sergeant Langston observed that Tammy neither said nor did anything out of the ordinary while he booked her."); see also Greffey , 996 F. Supp. at 1383 (explaining that where there is conflicting evidence as to the genuineness of an inmate's suicide attempt, that issue is best resolved by the factfinder).
Nor did the Court overlook Lt. Phillips’ testimony that he did not believe that Mr. Turner had made a noose or was suicidal and that he suspected that Mr. Turner was trying to keep his pants dry or get attention. However, if that was the case, it makes no sense why, according to Lt. Phillips’ own testimony, the first question he asked Mr. Turner was whether he was trying to harm himself. Likewise, Sgt. Mastro's testimony that he thought Mr. Turner was either hanging his clothes up or potentially trying to barricade the door makes no sense because record evidence shows that Sgt. Mastro specifically told Lt. Phillips to check on Mr. Turner because he may have made a noose with the pants.
Based on this evidence, a reasonable jury could find that, notwithstanding their denials, Sgt. Mastro and Lt. Phillips knew that Mr. Turner was preparing to hang himself in the shower cell and, thus, were subjectively aware that there was a strong likelihood that Mr. Turner would commit suicide when he did. Of course, the jury could also believe Sgt. Mastro's and Lt. Phillips’ testimony that they did not think that Mr. Turner was preparing to hang himself by tying the pants to the shower cell door, but at this stage of the case, the evidence must be viewed in the light most favorable to Plaintiff—not Sgt. Mastro and Lt. Phillips.
Similarly, there is evidence from which a reasonable jury could find that Lt. Phillips’ and Sgt. Mastro's were deliberately indifferent to the strong likelihood that Mr. Turner would harm himself. See Greason , 891 F.2d at 835-36 ("[W]here prison personnel directly responsible for inmate care have knowledge that an inmate has attempted, or even threatened, suicide, their failure to take steps to protect that inmate from committing suicide can amount to deliberate indifference."). Specifically, even though Lt. Phillips properly removed the pants from the shower cell door, neither he nor Sgt. Mastro contacted medical or mental health professionals or placed Mr. Turner on suicide precautions before they left the jail for the day. Instead, within minutes after seeing Mr. Turner make an instrument of suicide out of his pants, they allowed him to be moved to an isolated cell where there were sheets and other potential instruments of suicide—which he ultimately used to hang himself approximately three hours later. Cf. Cagle , 334 F.3d at 989-90 (finding no deliberate indifference where, among other things, the detainee's cell had been stripped of sheets, belt, shoelaces, and other usual instruments of suicide).
See Belcher v. City of Foley, Ala. , 30 F.3d 1390, 1393-94, 1401 (11th Cir. 1994) (finding that jail officials were not deliberately indifferent although they observed a detainee tying his shirt to a light fixture and to his neck, because of the preventative measures they took, including that: they moved him to a bare cell, took away his shirt, checked on him every five minutes, and initiated steps to move him to a jail that could serve suicidal inmates).
It is noteworthy that Sgt. Mastro and Lt. Phillips do not argue that their actions would have been appropriate if they knew that Mr. Turner was suicidal. Indeed, they both testified that they would have taken steps to protect Mr. Turner if they believed him to be suicidal. Thus, if the jury finds that Sgt. Mastro and Lt. Phillips knew that Mr. Turner was suicidal, the jury could also find that they were deliberately indifferent to the risk that he would harm himself by not taking the steps that they admitted they should have and would have taken if they knew he was suicidal.
Lt. Phillips testified: "If I felt he was suicidal, I would have put him [in suicide precaution]. But I didn't feel he was suicidal." Doc. 84-1, at 102; see also id. at 118-19 ("I didn't get any hesitation ... that would lead me to believe that he was suicidal. Because if I through he was, I would have changed that four [behavioral observation] to a two [suicide prevention], and that's tall it would have took."). Similarly, Sgt. Mastro testified: "If I believed at any point that [Mr. Turner] was wanting to commit suicide, I would have [different action]. But, again, ... we were not under the belief that he was suicidal." Doc. 81-5, at 97; see also id. at 137 ("If [Lt. Phillips’] determination was that [Mr. Turner] was going to harm himself in any way, we would have took measures right then to place him into suicide precaution.").
In sum, when the evidence is construed in the light most favorable to Plaintiff, a reasonable jury could find that Lt. Phillips and Sgt. Mastro violated Mr. Turner's rights under the Fourteenth Amendment based on their deliberate indifference to the risk that Mr. Turner would commit suicide.
That does not end the Court's analysis because Lt. Phillips and Sgt. Mastro argue that they are entitled to qualified immunity even if they are found to have violated Mr. Turner's constitutional rights. See Collier v. Dickinson , 477 F.3d 1306, 1307 (11th Cir. 2007) (explaining that qualified immunity protects government employees performing discretionary duties from liability unless the employees’ actions "violate clearly established statutory or constitutional rights of which a reasonable person would have known") (internal quotations omitted)
If the defendant establishes that he was acting within his discretionary authority when the alleged violation occurred, then the burden shifts to the plaintiff to establish (1) a violation of a federal right and (2) that the right was clearly established when the violation occurred. Everett v. Cobb Cty. , 823 F. App'x 888, 891 (11th Cir. 2020). Here, it is undisputed that Lt. Phillips and Sgt. Mastro were performing discretionary functions, and because a reasonable jury could find that they were deliberately indifferent to the risk that Mr. Turner would commit suicide, their entitlement to qualified immunity turns on whether the right at issue was "clearly established." The Court finds that it was.
The law is clearly established if it would be clear to the reasonable official that his conduct was unlawful. Leslie v. Hancock Cty. Bd. of Educ. , 720 F.3d 1338, 1345 (11th Cir. 2013). Looking at the law as decided by the Supreme Court, Eleventh Circuit, and the supreme court of the relevant state (here, Florida), the dispositive issue is whether (1) "a materially similar case has already been decided," (2) a "broader, clearly established principle .. should control the novel facts of the situation," or (3) the alleged conduct "so obviously violate[s] the constitution that prior case law is unnecessary." King v. Pridmore , 961 F.3d 1135, 1145 (11th Cir. 2020) (quoting Terrell v. Smith , 668 F.3d 1244, 1255-56 (11th Cir. 2012)).
"At the time of [Mr. Turner]’s suicide, decisional precedent had clearly established that a jailer acts with deliberate indifference if he has subjective knowledge of a strong likelihood that an inmate would attempt suicide and deliberately fails to take any action to prevent that inmate's suicide." Salter , 711 F. App'x at 542 (citing Snow , 420 F.3d at 1270 ). Here, as in Snow , Lt. Phillips and Sgt. Mastro took effectively no action to prevent Mr. Turner's suicide. Despite having observed Mr. Turner taking steps to hang himself, they did not communicate that information to other jail staff nor did they make any efforts to ensure that the cell to which he was moved—within minutes after the incident in the shower cell—did not have any items he could obviously use to harm himself. Moreover, even if there was not a case directly on point (like Snow ), the broader principle that it is unconstitutional to place a known suicidal inmate in a cell that contains items that the inmate could use to harm himself is clearly established—and just plain common sense.
Accordingly, under the circumstances, Lt. Phillips and Sgt. Mastro are not entitled to qualified immunity, and their motion for summary judgment on the claims against them in Count I of the amended complaint is due to be denied.
Monell Claims Against Sheriff Ford (Count II)
The § 1983 claim against Sherriff Ford in his official capacity is effectively a claim against Bay County. See Barnett v. MacArthur , 956 F.3d 1291, 1296 (11th Cir. 2020) ("The [ § 1983 ] claim against the Sheriff in his official capacity is in effect a claim against [the county].") (citing Monell , 436 U.S. at 690, n.55, 98 S.Ct. 2018 ).
The fact that the Court found that the claims against Lt. Phillips and Sgt. Mastro survive summary judgment does not necessarily mean that the claims against Sheriff Ford will survive summary judgment because "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell , 436 U.S. at 691, 98 S.Ct. 2018 ; see also McDowell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004) ("A county does not incur § 1983 liability for injuries caused solely by its employees. Nor does the fact that a plaintiff has suffered a deprivation of federal rights at the hands of a municipal employee infer municipal culpability and causation.") (internal citation omitted).
To overcome Sheriff Ford's motion for summary judgment, Plaintiff must establish that there is evidence from which a reasonable jury could find that (1) Mr. Turner's constitutional rights were violated; (2) the Sheriff's Office had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation. See Denham v. Corizon Health, Inc. , 675 F. App'x 935, 940-41 (11th Cir. 2017).
Here, as discussed above with respect to Lt. Phillips and Sgt Mastro, there is evidence from which a reasonable jury could find that Mr. Turner's constitutional rights were violated. Thus, for Sheriff Ford to be held liable, Plaintiff must show that Sheriff's Office had a policy or custom that was "the moving force of the constitutional violation." Grochowski v. Clayton Cnty. , 961 F.3d 1311, 1321 (11th Cir. 2020) ; Snow , 420 F.3d at 1271 ("It is only when the execution of the government's policy or custom ... inflicts the injury that the municipality may be held liable under § 1983.") (internal quotations omitted).
"A plaintiff has two methods by which to establish a municipality's policy: identify either (1) an officially promulgated policy or (2) an unofficial custom or practice shown through the repeated acts of a final policymaker for the municipality." Walker v. City of Calhoun , 901 F.3d 1245, 1255 (11th Cir. 2018). "A single incident of a constitutional violation is insufficient to prove a policy or custom." Craig v. Floyd County , 643 F.3d 1306, 1311 (11th Cir. 2011). Here, Plaintiff does not identify any policy, practice, or custom to which an inmate's serious risk of suicide is ignored, and it is undisputed that the Sheriff's Office set out specific measures to be taken for suicide prevention. Rather, Plaintiff argues that Sheriff Ford failed to properly train his staff on suicide prevention and mental health care, and his employees’ actions in disregarding jail policy made them de facto policymakers. The Court finds no merit in these arguments.
In order to succeed on a failure to train claim, the plaintiff must establish (1) that the Sherriff's Office in fact inadequately trained its deputies in the lawful execution of their duties and (2) that this failure to train was an office policy. Kerr v. City of West Palm Beach , 875 F.2d 1546, 1555 (11th Cir. 1989). Usually, plaintiffs seeking municipal liability under § 1983 for a failure to train must put forth 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." See Martin v. City of Macon Ga. , 702 F. App'x 941, 944 (11th Cir. 2017).
Here, there is no record evidence which shows that the Sherriff's Office inadequately trained any of the individual defendants in suicide prevention and mental health. Indeed, with respect to Sgt. Mastro and Lt. Phillips, the undisputed evidence establishes that they were trained in these policies and relevant topics on multiple occasions throughout the course of their employment, and they both testified that if they had suspected Mr. Turner was suicidal, they would have placed him on suicide precautions.
The Court did not overlook Plaintiff's argument that by failing to place Mr. Turner on suicide precautions on May 18, the Individual Defendants "acted contrary to their ‘better safe than sorry’ training approach." Doc. 81, at 37 (emphasis added). However, the Sheriff cannot be held liable under § 1983 for constitutional violations committed by Sgt. Mastro and Lt. Phillips when they failed to comply with jail policy. See Tittle v. Jefferson Cnty. Comm'n , 10 F.3d 1535, 1540 (11th Cir. 1994) (explaining that the county cannot be held liable "for the acts and omissions of jail personnel that were contrary to [c]ounty policy"); Greenway , 827 F. App'x at 962 ("No causation exists when the policies were not followed."); Camps v. Warner Robins , 822 F. Supp. 724, 737 (M.D. Ga. 1993) ("[A] municipality cannot be held liable for an employee's failure to comply with official policy.").
Nor has the Court overlooked Plaintiff's argument that Sheriff Ford is responsible for the actions of Lt. Phillips and Sgt Mastro as de facto policymakers because he delegated Lt. Phillips and Sgt Mastro the authority to "disregard everything they were trained to do and every red flag of suicidal warnings they were trained to use to protect Turner against suicide, making their acts and omissions the REAL final policy and practice of the [Sheriff's Office]." See Doc. 81, at 38. This argument is nonsensical and unsupported by any record evidence. Moreover, as noted above, a single constitution violation by subordinate officers (and there is no evidence of prior similar violations by Lt. Phillips or Sgt. Masto) does not make them de facto policymakers or give rise to municipal liability. See Craig , 643 F.3d at 1311.
In sum, because there is no evidence from which a reasonable jury could find that Mr. Turner's suicide was caused by inadequate policies or training rather than the failure to follow the constitutionally-sound policies that were in place at the jail, Sheriff Ford is entitled to summary judgment on the Monell claim in Count II of the amended complaint.
Plaintiff's expert, Aubrey Land, conceded that the Bay Sheriff's Office's written policies and training materials were adequate. Doc. 84-18, at 34, 37. Plaintiff's other expert, Dr. Hayward asserted that the jail's suicide precaution policies were inadequate because in practice, they were not followed, Doc. 84-3 at 197-204, 237-40; however, in substance, this argument takes issue with the training or implementation of policies and the actions that staff took that day, rather than the policies themselves.
State Law Wrongful Death Claim Against the Individual Defendants (Count VII)
The Individual Defendants argue that they are entitled to summary judgment on the Florida Wrongful Death Act claim in Count VII of the amended complaint because they have statutory immunity under § 768.28(9)(a), Fla. Stat. The Court agrees with respect to Nurse Ridley, DO Furman, DS Potter, and MHC Howell, but not Lt. Phillips and Sgt. Mastro.
Section 768.28(9)(a) provides statutory immunity for state employees acting in the scope of employment against state law tort claims, unless the employee "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Here, it is undisputed the Individual Defendants were acting within their scope of employment, so they are entitled to summary judgment on Plaintiff's wrongful death claim unless there is evidence from which a reasonable jury could find that they acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard.
"Although the statute does not define ‘bad faith,’ under section 768.28(9)(a), ‘[b]ad faith has been equated with the actual malice standard.’ " Parker v. Fla. Bd. of Regents ex rel. Fla. State Univ. , 724 So. 2d 163, 167 (Fla. 1st DCA 1998) (quoting Ford v. Rowland , 562 So. 2d 731, 734 (Fla. 5th DCA 1990) ). Similarly, "malicious purpose" has been construed to mean "ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act." Bothmann v. Harrington , 458 So. 2d 1163, 1171 n.11 (Fla. 3d DCA 1984) ; see also Sierra v. Associated Marine Insts., Inc. , 850 So. 2d 582, 593 (Fla. 2d DCA 2003) (explaining that section 768.28(9)(a) requires "conduct that is worse than ‘gross negligence’ "). The "wanton and willful conduct" standard has been construed to be the equivalent of reckless conduct. Bredbenner v. Sullivan , 716 F. App'x 935, 936 (11th Cir. 2018) ; Rogers v. Johnson , 481 F. Supp. 3d 1239, 1251 (N.D. Fla. 2020), aff'd sub nom. Rogers v. Santa Rosa Cnty. Sheriff's Office , 2021 WL 1326938 (11th Cir. April 9, 2021).
The wanton and willful conduct standard is at least as high as the standard required to prove § 1983 deliberate indifference claims, see Valdes v. Crosby , 390 F. Supp. 2d 1084, 1108 (M.D. Fla. 2005), aff'd , 450 F.3d 1231 (11th Cir. 2006), and because there is evidence from which a reasonable jury could find that Lt. Phillips and Sgt. Mastro were deliberately indifferent to the risk that Mr. Turner would commit suicide, it follows that they are not entitled to immunity under § 768.28(9)(a), see Rogers , 481 F. Supp. 3d at 1250-51 (denying summary judgment on state law claims against defendants where summary judgment was denied on § 1983 claims and a reasonable jury could find that defendants "acted with recklessness or willful and wanton disregard" for the suicidal inmate's safety and wellbeing). However, with respect to the other Individual Defendants, there is no evidence from which a jury could find that they acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard for Mr. Turner's health or safety.
Accordingly, Lt. Phillips and Sgt. Mastro are not entitled to summary judgment on the wrongful death claim against them in Court VII of the amended complaint, but the other Individual Defendants are entitled to summary judgment on that claim pursuant to § 768.28(9)(a).
State Law Negligence Claim Against Sheriff Ford(Count VI)
In Count VI of the amended complaint, Plaintiff alleges that Sheriff Ford, in his official capacity, is vicariously liable for the negligence of the Individual Defendants. Sheriff Ford argues that he is entitled to summary judgment on this count because none of the Individual Defendants were negligent.
Florida has waived sovereign immunity for torts committed by government employees, including ordinary negligence claims against jail officials. § 768.28(1), Fla. Stat.; see also Cook , 402 F.3d at 1120 n.13 ("[U]nder Florida law, a county's treatment of an individual inmate in its custody is an operational function, for which the State of Florida has waived governmental immunity."). The Sheriff, in his official capacity, is liable under Florida law for the wrongful acts or omissions of his employees within the scope of their employment. Id. at 1119 n.12.
Here, as discussed above, there is evidence from which a reasonable jury could find that Lt. Phillips and Sgt. Mastro were at least negligent in failing to take steps after the incident in the shower cell to prevent Mr. Turner's suicide and that his death was a foreseeable consequence of their acts and omissions. See id. at 1119-22 (discussing negligence standard under Florida law in prison suicide cases). Accordingly, Sheriff Ford is not entitled to summary judgment on the negligence claim in Count VI of the amended complaint.
Conclusion
In sum, for the reasons stated above, it is ORDERED that:
1. Sheriff Ford's motion for summary judgment (Doc. 70) is GRANTED with respect to the federal claim in Count II of the amended complaint and DENIED with respect to the state law claim in Count VI.
2. Lt. Phillips, Sgt. Mastro, and Nurse Ridley's motion for summary judgment (Doc. 71) is GRANTED with respect to claims against Nurse Ridley and DENIED with respect claims against Lt. Phillips and Sgt. Mastro.
3. DO Furman and DS Potter's motion for summary judgment (Doc. 72) is GRANTED.
4. MHC Howell's motion for summary judgment (Doc. 73) is GRANTED .
5. The claims against Nurse Ridley, DO Furman, DS Potter, and MHC Howell, are DISMISSED with prejudice , and the Clerk shall enter judgment in their favor and terminate them as parties in CM/ECF.
Additionally, because it appears that this case is now ready to be set for trial, it is FURTHER ORDERED that within 7 days of the date of this Order, the parties shall confer and provide the Court several mutually agreeable dates and times during the weeks of July 5-9 and 12-16, 2021, for a telephonic case management conference to set this case for trial.
DONE and ORDERED this 21st day of June, 2021.