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Perry v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

July 1, 2019

CECILIA PERRY, as Plaintiff Ad Litem for Christina Brooks, and D.B., D.B., D.B., and D.B., by and through their Next Friend, CECILIA PERRY, on behalf of all beneficiaries pursuant to Section 537.080, Mo. Rev. Stat., Plaintiff,
v.
THE CITY OF ST. LOUIS, et al, Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the separate Motions for Summary Judgment filed by Defendants Kent Menning and Kevin Stevener (ECF No. 84), Defendants City of Jennings, City of Jennings Detention Center, Eugene Neal, Rick Crim, Demetrius Staples, Aykan Acikgoz, Kellye Still, Kyle Bashaw, and Yvette Harris (ECF No. 87), and Defendants City of St. Louis, Dale Glass, Lynn Page, Jermanda Adams, and Josh Hill (ECF No. 92). This Court previously issued an Order of Partial Dismissal in favor of Defendants Acikgoz, Bashaw, Crim, Glass, Harris, Hill, Neal, Page, Stevener, and Still after Plaintiff Cecelia Perry[1] conceded she was not opposed to summary judgment in favor of those specific defendants. (ECF No. 143) The claims against Defendants City of St. Louis, Adams, Menning, City of Jennings, and Staples remained pending. After careful consideration, the Court now addresses the remaining claims.

         BACKGROUND

         On October 1, 2014, DeJuan Brison was arrested and booked into the St. Louis City Justice Center. (PL's Statement of Additional Undisputed Material Facts ("SAUMF") in Opp'n to St. Louis City Defs.' Mot. for Summ. J. ¶ 2, ECF No. 105) At the time of Brison's confinement, the St. Louis City Justice Center had a "Suicide Prevention/Intervention" policy in effect (the "Suicide Prevention Policy"). (Id. at ¶ 3) The Suicide Prevention Policy included two "Crisis Watch Status" designations: full suicide watch and close observation. (Id. at ¶ 4) An inmate designated for full suicide watch required, among other things, "[observation of the inmate in staggered intervals, not to exceed 10 minutes in high risk situations" to include "recorded observation within each 10 minute interval." (ECF No. 105-4, at 2) An inmate designated for close observation required, among other things, "[o]bservation of the inmate in staggered intervals, not to exceed 15 minutes, in moderate risk situations" to include "recorded observation within each 15 minute interval." (Id.)

         Both full suicide watch and close observation are defined as "[c]risis levels that identify the status of inmates, who have been identified by the mental health staff as being at risk of self-harm, emotionally disturbed or mentally ill and not stabilized on medication." (Id.) The Suicide Prevention Policy further provides that an inmate "shall remain on Full Suicide Watch until a Mental Health Professional determines that the crisis has been resolved or that the inmate can be placed in a less restrictive watch status." (Id. at 9) Even after a medical health professional has determined an inmate should be removed from full suicide watch status, such an inmate shall be placed on modified suicide watch/close observation status for at least 24 hours[2] (Id.)

         St. Louis City Justice Center's Suicide Prevention Policy also establishes procedures for transferring inmates who are on crisis watch status. (PL's SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J. ¶ 13, ECF Nos. 105) Specifically, "When an inmate on Crisis Watch Status is being released to another law enforcement agency, the Admissions/Processing Staff document in the Admissions/Processing Log Book that the receiving law enforcement agents were informed that the inmate is on a Crisis Watch Status." (ECF No. 105-4, at 12)

         When Brison was initially processed at the St. Louis City Justice Center on October 1, 2014, he told the intake officer that he suffered from major depression and had a history of mental health problems. (PL's SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J. ¶ 13, ECF No. 105) He also denied any history of psychiatric hospitalization, denied any history of suicide attempts, denied any recent significant loss, denied feeling hopeless, and denied having current suicidal thoughts.[3] (St. Louis City Defs.' Statement of Undisputed Material Facts ("SUMF") ¶ 2, ECF No. 93-1)

         On October 2, 2014, Brison told a correctional officer that he was feeling suicidal. (Id. at ¶ 3) Pursuant to the Suicide Prevention Policy, he was placed on full suicide watch status. (Id. at ¶ 5) The following day, a licensed professional counselor, Fred Barker, conducted a mental health assessment of Brison. (St. Louis City Defs.' SUMF ¶ 6, ECF No. 93-1) Barker attests that Brison denied having suicidal thoughts and denied previously indicating he was suicidal. (Id. at ¶ 7) After Barker's assessment, Brison was downgraded to close observation. (PL's SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J. ¶ 20, ECF No. 105)

         The City of St. Louis learned that the City of Jennings had an outstanding warrant for Brison and, on the morning of October 4, 2014, St. Louis County Prisoner Conveyance Officer Kent Menning arrived at the St. Louis City Justice Center to transport Brison to the Jennings Detention Center. (Id. at ¶ 23) Correctional Officer Jermanda Adams was on duty at the time of Brison's transfer and was responsible for ensuring all policies were followed, which included informing transporting officers if an inmate was on full suicide watch of close observation. (Id. at ¶¶ 24-27) While Adams does not recall her interaction with Brison on October 4, 2014, she has testified that she reviews the files of inmates who are about to be transferred and informs the transporting officer if the inmate is on full suicide watch or close observation.[4] (PL's SAUMF in Opp'n to Def Menning's Mot. for Summ. J. ¶ 16, ECF No. 108) Accordingly, Adams claims she would have orally informed Menning that Brison was on close observation. (Id.) Menning, who maintains he recalls specifically his interactions regarding Brison, denies that Adams informed him that Brison was on close observation at the time of his transfer or had recently been on full suicide watch.[5] (PL's SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J. ¶ 33, ECF No. 105) (Statement of Material Facts ("SMF") of Def. Kent Menning and Kevin Stevener in Support of Their Separate Mot. for Summ. J. ¶ 29, ECF No. 85)

         St. Louis County conveyance policy required officers confirm that transferees did not suffer from any mental or medical conditions prior to transporting. (PL's SAUMF in Opp'n to Def. Menning's Mot. for Summ. J. ¶ 19, ECF No. 108) St. Louis County conveyance officers were further required to confirm the mental or medical condition of a transferee before reporting the inmate's status to the receiving jurisdiction. (Id. at ¶ 20) Menning testified that, when he arrived to transport Brison and three other inmates to Jennings, he asked a St. Louis City Justice Center correctional officer if any transferee had a condition he needed to know about, and the correctional officer responded "I don't know." (SMF of Def. Kent Menning and Kevin Stevener in Support of Their Separate Mot. for Summ. J. ¶ 30, ECF No. 85) According to Menning, he then asked the group of transferees whether there were any problems that he should know about and no one spoke up about any medical or mental condition.[6] (Id. at ¶¶ 31 -33)

         In 2013, the City of Jennings Detention Center implemented a policy that provides "[i]nmates cannot be accepted into the Jennings Department of Corrections and have to remain in the custody of the arresting or transporting officers" if the inmate, among other conditions, "is in need of medical attention," "is in need of psychiatric evaluation or observation," or "requires other special needs that the facility cannot reasonably provide." (ECF No. 89-20, at 2) An additional "Mental Disability & Suicide Intake" form included a "Questionnaire for Detainee"[7]and "Observation Questions."[8] (Id. at 6)

         During the booking process on October 4, 2014, Demetrius Staples asked Brison and the other transferees if they were having any mental issues. (City of Jennings Defs.'s Statement of Uncontroverted Material Facts ("SUMF") in Support of Their Mot. for Summ. J. ¶ 19, ECF No. 89) During this group questioning, Brison did not verbally indicate he was experiencing any mental health issue. (Id. at ¶ 20) Later, Brison indicated that he believed he was having an asthma attack, and staff called emergency medical services. (Id. at ¶ 21) Personnel from a local hospital responded and attended to Brison for more than ten minutes and left the detention center after measuring Brison's oxygen levels as between 99% and 100%. (Id. at ¶ 23) Brison was then placed in a holding cell separate from other inmates after some became upset at being forced to vacate the booking area while he received medical attention. (Id. at ¶¶ 25-27) Approximately forty-one minutes after Brison was placed in a single cell, he was found unconscious and hanging from the bars of his cell with a blanket wrapped around his neck. (Id. at ¶ 28) Brison was transported to a hospital and placed on life support. He died on October 21, 2014, without regaining consciousness.

         Brison's mother, Christina Brooks, initially filed suit in state court against (1) the City of St. Louis, the St. Louis Justice Center, St. Louis Corrections Commissioner Dale Glass, and corrections officers Joshua Hill, Carl Myers, Lynn Page, and Jermanda Adams (referred to collectively as "the St. Louis Defendants"); (2) St. Louis County police officer Kent Menning; and (3) the City of Jennings, the Jennings Detention Center, Jennings Department of Corrections official Eugene Neal, and corrections officers Rick Crim, Demetrius Staples, Aykan Acikgoz, Kellye Still, Kyle Bashaw, Yvette Harris, and Kevin Stevener (referred to collectively as "the Jennings Defendants"). In her Petition (ECF No. 3), Brooks asserted the following claims: state-law negligence claims against the St. Louis City Justice Center Correctional Officers and Menning (Count I), the City of St. Louis (Count II), St. Louis City Justice Center (Count III), Jennings Detention Center Correctional Officers (Count VII), the City of Jennings (VIII), and the City of Jennings Detention Center (Count IX); claims brought pursuant to 42 U.S.C. § 1983 alleging deliberate indifference against the City of St. Louis (Count IV), St. Louis City Justice Center (Count V), St. Louis City Justice Center Correctional Officers (Count VI), the City of Jennings (Count X), the City of Jennings Detention Center (Count XII), and the Jennings Detention Center Correctional Officers (Count XIII); and a claim against the City of Jennings alleging it operates a "debtors' prison" in violation of § 1983 and the First, Fourth, Sixth, Thirteenth, and Fourteenth Amendments to the United States Constitution (Count XI). Brooks seeks compensatory damages in excess of $2, 000, 000.00, punitive damages in excess of $5, 000, 000.00, and attorneys' fees and costs incurred in this action.

         The Jennings Defendants removed the case to this Court, invoking federal question jurisdiction pursuant 28 U.S.C. § 1331. See 28 U.S.C. § 1441(a). This Court has previously dismissed Counts II, III, V, IX, and XII as well as the official-capacity claims in Count XIII against Acikgoz, Bashaw, Crim, Harris, Neal, Staples, and Still. (ECF Nos. 33, 34, 63, 64) Further, this Court granted partial summary judgment in favor of Defendants Acikgoz, Bashaw, Crim, Glass, Harris, Hill, Neal, Page, Stevener, and Still after Plaintiff conceded she was not opposed to such an order. (ECF No. 143) The separate motions for summary judgment related to the remaining claims against Defendants City of St. Louis, Adams, Menning, City of Jennings, and Staples will now be addressed.

         LEGAL STANDARD

         The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

         A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials of his pleading. Id.

         In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

         NEGLIGENCE CLAIMS

         (a) Adams

         Missouri courts have long-applied the doctrine of official immunity to tort claims against public officials. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. 2008) (en banc), as modified on denial ofreh 'g (Sept. 30, 2008); Letterman v. Does, 859 F.3d 1120, 1125 (8th Cir. 2017). "This judicially-created doctrine protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. The official immunity doctrine, however, does not provide public employees immunity for torts committed when acting in a ministerial capacity." Southers, 263 S.W.3d at 610 (citation omitted).

Whether an act can be characterized as discretionary depends on the degree of reason and judgment required. [Kanagawa v. State, 685 S.W.2d 831, 835 (Mo. 1985) (en banc), overruled on other grounds by Alexander v. State, 756S.W.2d539 (Mo. 1988) (en banc).] A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued. Id. A ministerial function, in contrast, is one "of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed." Id. (internal citations omitted). The determination of whether an act is discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the public employee's duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity. Id. Even a discretionary act, however, will not be protected by official immunity if the conduct is willfully wrong or done with malice or corruption. Schooler v. Arrington, 106 Mo.App. 607, 81 S.W. 468, 469 (1904).

Id. at 610-11; see also Brown v. City of Golden Valley, 574 F.3d 491, 500 (8th Cir. 2009) ("When an official is exercising such discretionary functions, official immunity applies unless a willful or malicious wrong is committed.") (internal quotation marks omitted).

         Adams argues the Court should grant summary judgment on Count I in her favor because she is protected from any liability for Brison's death based on the doctrine of official immunity. Plaintiff asserts Adams is liable under a theory of negligence notwithstanding her status as a public official because she failed to perform a ministerial duty: inform Menning or the City of Jennings that Brison was on close observation. Because St. Louis City Justice Center's Suicide Prevention Policy required staff to inform receiving law enforcement agents that a transferee was on a crisis watch status, Plaintiff claims Adams did not have the discretion necessary to avail herself to the protection of official immunity.

         In Letterman v. Does, 859 F.3d 1120 (8th Cir. 2017), parents of a deceased state prisoner sued correctional officers for the wrongful death of their son after he died while on suicide watch. The prison facility had in place a close observation policy, which required officers to check on a subject prisoner every fifteen minutes, record their observations in a close observation log, and report a medical emergency if, during a check, the officers "could not observe movement, obtain a verbal response, or see breathing." Id. at 1123. The plaintiffs' son hit his head on the doorjamb while he was under close observation, which caused a noise loud enough to prompt an officer to check on him. Id. Lying on the ground, the prisoner waived his hand in response to the officer's question and the log noted the prisoner was "good." Id. Subsequent checks yielded some physical movements but never a verbal response. Id. After some time, a nurse determined he needed immediate medical attention. Id. The prisoner was taken to a hospital, where he later died of subdural bleeding caused by a head injury. Id.

         The correctional officers in Letterman argued they were protected from liability by official immunity because compliance with the prison facility's policies required exercise of discretion to determine if a prisoner's non-responsiveness was due to sleep or a medical emergency. Id. at 1126. The Eighth Circuit disagreed and held that the correctional officers were not entitled to official immunity because their failure to follow the institution's close observation policies constituted a ministerial duty. Id. at 1126-27.

The close-observation policy requires officers to check on the inmate every fifteen minutes and report as a medical emergency any instance when they cannot observe movement or obtain a verbal response or when it appears that the inmate is not breathing. Whether the inmate is asleep is irrelevant, because the movement requirement may be satisfied by the rise and fall of the inmate's chest as he breathes. The duty to report a medical emergency when one of these criteria is met is mandatory and does not depend on the officer's assessment of whether a medical emergency actually exists.

Id. (emphasis added).

         As in Letterman, the St. Louis City Justice Center's Suicide Prevention Policy did not provide Adams with the discretion in this situation. The Suicide Prevention Policy mandated Adams inform Menning that Brison was on close observation without regard to her own determination as to Brison's mental health or suicide risk. There exists, however, a genuine dispute in the record before this Court whether she did so.[9] Further, Barker's lowering of Brison's crisis watch status does not have a talismanic effect on Adams's potential liability. As the Missouri Supreme Court has made clear, "A ministerial function ... is one 'of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his [or her] own judgment or opinion concerning the propriety of the act to be performed.,,, Southers, 263 S.W.3d at 610-11 (emphasis added) (quoting Kanagawa, 685 S.W.2d at 835). The fact that Barker evaluated Brison and made a determination that Brison should no longer be on full suicide watch nevertheless resulted in Brison remaining on modified suicide watch/close observation at the time of his transfer to the Jennings Detention Center via Menning.

         Adams also argues the Court should grant summary judgment in her favor on Count I because Brison's suicide was a new and independent intervening act that broke the causal connection between any alleged negligent act on her part and Brison's death. See Harden ex rel. Estate of Travis v. St. Louis Cty., No. 4O4CV6O2(CEJ), 2005 WL 1661505, at *3 (E.D. Mo. July 5, 2005) (citing Eidson v. Reproductive Health Servs., 863 S.W.2d 621, 627 (Mo.Ct.App. 1993)). Plaintiff, on the other hand, asserts that Brison's death was foreseeable because St. Louis City Justice Center's purpose in maintaining a Suicide Prevention Policy, which included specific procedures for informing receiving law enforcement agencies if a transferee was on a crisis watch status, was to ameliorate the risk of an inmate who has been determined to have a substantial risk of suicide from harming himself or herself.

         The Court has already rejected Adams's argument. In denying the St. Louis defendants' motion to dismiss, the Court[10] explained that Brison's suicide does not cut off the potential causal link from the defendant's actions.

Once it is established a defendant's conduct "has in fact been one of the causes of the plaintiffs injury, there remains the question whether the defendant should be legally responsible for the injury." [Conn v. City of Reno, 591 F.3d 1081, 1100 (9th Cir. 2010), cert, granted, judgment vacated sub nom. City of Reno, Nev. v. Conn, 563 U.S. 915 (2011), and opinion reinstated, 658 F.3d 897 (9th Cir. 2011)] (citations omitted). The defendants' conduct is not the proximate cause of the alleged injuries "if another cause intervenes and supersedes [their] liability for the subsequent events." Id. at 1101 (citations omitted). However, 'foreseeable intervening causes . . . will not supersede the defendant's responsibility." Id. (emphasis added). If "reasonable persons could differ" over the question of foreseeability, "summary judgment is inappropriate and the question should be left to the jury." Id.

(ECF No. 33, at 9-10) The Court holds that a reasonable jury could find that Brison's suicide was a natural and probable consequence of Adams's alleged failure to inform Menning about Brison's crisis watch status at the time of his transfer. Consequently, Adams's motion for summary judgment with respect to Count I is denied.

         (b) Menning

         "Qualified immunity protects governmental officials from liability for civil damages if they have not violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "To defeat qualified immunity, the plaintiff has the burden to prove: '(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation.'" Wilson v. Lamp, 901 F.3d 981, 986 (8th Cir. 2018) (quoting Howard v. Kan. City Police Dep 't, 570 F.3d 984, 988 (8th Cir. 2009)). "In the jail suicide context, qualified immunity is appropriate when a plaintiff 'has failed to show . . . that his jailers have acted in deliberate indifference to the risk of his suicide.'" Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th Cir. 2012) (quoting Rellergert v. Cape Girardeau Cty., Mo., 924 F.2d 794, 796 (8th Cir. 1991)).

         Prisoners and pretrial detainees have a "clearly established constitutional right to be protected from the known risks of suicide and to have [their] serious medical needs attended to." Whitney v. City of St. Louis, Mo., 887 F.3d 857, 860 (8th Cir. 2018) (alteration in original) (quoting Yellow Horse v. Pennington Cty., 225 F.3d 923, 927 (8th Cir. 2000)); Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003). "The Eighth Amendment prohibits jail officials from acting with deliberate indifference towards risks of suicide." Whitney, 887 F.3d at 860 (citing Coleman, 349 F.3d at 538). The Eighth Circuit has established that a determination of an official's deliberate indifference requires an objective and subjective analysis. Id. (citing Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014)). Consequently, Plaintiff must show that (1) the specific defendant had actual knowledge that Brison posed a substantial risk of suicide and (2) the defendant failed to take reasonable steps to abate that risk. Id. (citing Coleman, 349 F.3d at 538).

         The Eighth Circuit has made clear that an inmate's suicide itself is not probative of the question whether correctional officials' measures taken "were so inadequate as to be deliberately indifferent to the risk" of suicide because

"tying the suicide to proof of deliberate indifference is tantamount to requiring jailers to provide suicide-proof institutions," and to ensure against suicide ever happening. [Rellergert, 924 F.2d at 796.] This is not the constitutional test. Instead, we must objectively "consider[ ] the measures taken in light of the practical limitations on jailers to prevent inmate suicides." Id. "Simply laying blame or fault and pointing out what might have been done is insufficient. The question is not whether the jailers did all they could have, but whether they did all the Constitution requires." Id. at 797. "In evaluating an official's response to a known suicide risk, we should be cognizant of how serious the official knows the risk to be." [Gregoire v. Class, 236 F.3d 413, 418 (8th Cir. 2000)].

Luckert, 684 F.3d at 818 (second alteration in original, footnote omitted).

         Menning argues he was not deliberately indifferent to Brison's risk of suicide. Contrary to Adams's deposition testimony, Menning maintains he was not informed Brison was on close observation at the time of his transfer. In addition to reviewing the booking sheet that would have contained relevant information related to transferees' medical conditions, Menning testified he asked a correctional officer at St. Louis City Justice Center and the group of transferees if he needed to know anything about their conditions. He also said he makes his own determinations of inmates' conditions and received crisis intervention training in addition to in-service training for mental health screening. Based on his training, experience, observation, and judgment, Menning claims he made a judgment that Brison was not exhibiting suicidal ideation and was not in crisis.

         Plaintiff, on the other hand, argues Menning is not entitled to qualified immunity because he has admitted to not following St. Louis County policies and procedures related to transferring inmates. During Menning's deposition, Plaintiffs counsel asked: "What you should have done under the policy of protocol, procedure and training and practice of St. Louis County is get an affirmative regarding DeJuan Brison's medical condition before you ever relayed that information to Jennings; correct?" (Menning Dep. 88:22-89:1) Menning answered, ...


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