United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the motion of defendants St. Louis County, Missouri and Herbert Bernsen to dismiss the claims filed against them pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs have responded in opposition, and the issues are fully briefed.
Plaintiffs’ decedent, Jereme M. Hartwig, was incarcerated in the St. Louis County jail and committed suicide in his cell on February 5, 2013. Plaintiffs are the decedent’s children and mother. At some point during the weeks prior to his suicide, Hartwig struck himself with a telephone, resulting in the need for stitches to his head. After this incident, Hartwig was placed on precautionary suicide watch. The cell in which he was placed contained clothing and sheets, along with anchor points from which to tie and suspend those items. After being placed in the cell, Hartwig hanged himself with a bed sheet. Paramedics and hospital personnel attempted to resuscitate him, but to no avail. On the date of his death, Hartwig had placed a recorded phone call from the jail to his mother, plaintiff Brenda Parrish, and told her to not bother coming to see him in court on Thursday because he would not be there. The investigation report of his death noted, “it appears that J. Hartwig had been considering suicide prior to the incident.” Pls.’ Compl. ¶ 37 [Doc. #1].
On December 17, 2014, plaintiffs initiated this action against St. Louis County, Missouri, St. Louis County Chief of Police Jon Belmar, and Herbert Bernsen, the director of the St. Louis County Department of Justice Services. In the complaint, plaintiffs assert claims pursuant to 42 U.S.C. § 1983 (Count I), the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (Count II), and a claim of wrongful death (Count III).
II. Legal Standard
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also id. at 563 (stating the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555.
A. Count I: 42 U.S.C. § 1983 Claim Against Defendant Bernsen
In Count I, plaintiffs allege that defendant Bernsen deliberately disregarded an immediate and serious threat to the mental health and well-being of inmates with a history of suicide attempts, including decedent Hartwig, by denying them access to intensive and structured mental health care, treatment and observation necessary to treat their serious mental health needs and prevent suffering and death. Defendants argue that Count I should be dismissed because (1) Bernsen was not deliberately indifferent to serious medical needs and (2) Bernsen is entitled to qualified immunity.
1. Deliberate Indifference
The Eighth Amendment prohibits officials from acting with deliberate indifference towards an inmate's substantial suicide risk, and the Fourteenth Amendment extends at least as much protection to pretrial detainees. Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003). To prevail on a deliberate indifference claim, a plaintiff must show: (1) the defendant jail official actually knew that the inmate faced a substantial risk of serious harm and (2) failed to respond reasonably to that risk. Id. (citing Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)). Deliberate indifference is akin to criminal recklessness and requires something more than merely negligent misconduct. Id.
Because plaintiffs have sued Bernsen in his individual capacity, plaintiffs must establish that Bernsen personally participated in the constitutional deprivations, as it is “well settled that respondeat superior cannot be the basis of liability in a § 1983 action.” Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990) (citing Bolin v. Black, 875 F.2d 1343, 1347 (8th Cir. 1989)). Supervisors may incur liability for an Eighth Amendment violation only “when the supervisor is personally involved in the violation or when the supervisor’s corrective inaction constitutes deliberate indifference toward the violation.” Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (citing Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)). “The supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what he might see.” Ripson v. Alles, 21 F.3d 805, 809 (8th Cir. 1994) (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).
In the instant complaint, plaintiff alleges that Bernsen was aware of plaintiff’s history of suicide attempts and that plaintiff continued to be at risk for committing suicide. Notwithstanding this knowledge, Bernsen failed to provide mental health treatment and other services to plaintiff to prevent his death. See Coleman, 349 F.3d at 538 (finding that the actual knowledge required for deliberate indifference can be proven through circumstantial evidence and the obviousness of a ...