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Sowell v. Dominguez

United States District Court, N.D. Indiana, Hammond Division

March 27, 2017

ROY DOMINGUEZ et al., Defendants.



         Defendants Southlake Center for Mental Health, Dr. Lee Periolat, and Manuel Barragan (“Southlake defendants, ” collectively) have moved for summary judgment. (DE # 143.) Defendants Officer Janice Hatton, Officer Linda Riley, Sergeant R. Starkey, and Sergeant Hubner (“Jail defendants”) have also moved for summary judgment. (DE # 145.) Defendants Roy Dominguez and Bennie Freeman (“Lake County defendants”) have also moved for summary judgment. (DE # 147.) As explained below, Southlake defendants' motion will be denied. Jail defendants' motion will be granted, in part, and denied, in part. Lake County defendants' motion will also be granted, in part, and denied, in part.

         In addition, Southlake defendants have also filed a Rule 56 motion to strike portions of plaintiff's response to defendants' motion for summary judgment. (DE # 175.) That motion will be denied.

         I. BACKGROUND

         The facts discussed herein are either undisputed, or, when in dispute, resolved in favor of the non-moving party, plaintiff Tamarra Sowell. See Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). Sowell filed a complaint as “personal representative, Administrator for the Estate, and on behalf of the heirs of Adekunle Odumabo, ” who is deceased. (DE # 24 ¶ 1.)

         A. Odumabo's Arrest and Arraignment on April 27, 2007.

         On April 26, 2007, Odumabo was arrested by the U.S. Marshals Service on charges of violating the terms of his supervised release while facing federal fraud charges. (transcript United States v. Odumabo, 2:04-cr-0087-JTM-PRC, Apr. 29, 2007, DE # 149-3 at 2-3.) That same day, Odumabo appeared before Magistrate Judge Paul R. Cherry for arraignment and an initial hearing on the superceding indictment filed in that case. (Id.) During the hearing, Odumabo made several suicidal statements in open court, including the following:

- “If they like, they can just end my life right here in court instead of wasting the government's funding.”
- “It is very unfortunate this thing happened. . . and I'm ready to give my life for it . . . Right now. It is worthless.”
- “I would really like to just make my peace with the Lord, maybe by poisoning, by firing squad, whatever it takes.”
- “I just want to get this life over with. I'm just done, I'm done.”
- “I got to spend two years with my son. That's enough. . . You can take my life.”
- “I wish I was dead . . . I'm willing to meet the lord.”

(See id.)

         In light of these statements, Judge Cherry ordered the U.S. Marshals to notify Lake County Jail that Odumabo had made several suicidal statements in the courtroom and that he should be appropriately monitored for a suicidal condition. (Id. at 15.)

         B. Odumabo Placed on Suicide Watch at Lake County Jail

         Odumabo was remanded into custody at the Lake County Jail (the “Jail”) on the same day of his arraignment. (DE # 149-7.) The U.S. Marshals informed the Jail that Odumabo was suicidal and this was reflected in the notes of the intake nurse. (Id. at 3 (“Per paper from Marshals, Pt. is suicidal”).) At around 5:30 p.m. that same day, Odumabo was interviewed by Patti Kerr, a Southlake crisis counselor. (Id.) Kerr recorded on Odumabo's chart that he “had stated in court in front of officers, ‘kill me, shoot me, why waste tax payers money over a fraud charge.'” (Id.) She also noted that he currently denied having any suicidal thoughts. (Id.)

         Kerr classified Odumabo as “MH5 Full Suicide Precautions, ”[1] placed him on suicide watch, and referred his case to Dr. Periolat, Southlake's psychiatrist at the Jail. (Id.) On suicide watch, Odumabo was placed in a cell that was equipped with a surveillance camera, he was given a paper gown and paper blanket, and all sharp objects, personal clothing and belongings were removed from his cell. (DE # 167-1 at 54-55.)

         The following afternoon, Odumabo was visited by Manual Barragan, a “Crisis Intervention Specialist” who had been employed by Southlake at the Jail since 1989. (DE ## 149-7 at 3; 143-3 at 8.) Notwithstanding his title, Barragan was not a licensed mental health practitioner. (DE # 167-1 at 49-51.) Neither did he have a college degree or any formal mental health education. (Id.) He was, however, a “Certified Correctional Health Practitioner.” (DE # 143-3 at 36.) The requirements for becoming a CCHP include passing a test and annually completing eighteen or more hours of continuing educational classes. (DE # 167-1 at 48.) Barragan also received informal on-the-job training by working under a licensed social worker at the Jail and the psychiatrist, Dr. Periolat. (DE # 143-3 at 9-10.)

         Barragan interviewed Odumabo by speaking through an open slot in the door of Odumabo's cell. (DE # 167-1 at 15-16.) Barragan recognized that this manner of interviewing inmates could lead them to be less forthcoming given that “their business” could be overheard by other people. (Id. at 43.) Nevertheless, through the course of his interview, Barragan learned that Odumabo was angry about being in jail and in particular about being on suicide watch. (Id. at 15-16.) Odumabo confirmed the statements he had made in court, but contended that he had been misinterpreted as being suicidal. (DE # 149-17 at 13.) Barragan asked him if he had any thoughts of harming himself and Odumabo replied: “No. I just want to get off this floor. Let me get off this floor.” (DE # 167-1 at 17-18.) At this time, Barragan did not conduct a formal suicide risk assessment. Instead, Barragan noted that he was able to make a “no suicide contract” with Odumabo.[2] (DE # 149-7 at 3.)

         C. Odumabo Removed from Suicide Watch

         At the conclusion of the interview, Barragan conferred with Dr. Periolat regarding Odumabo's status on suicide watch. (DE # 167-1 at 27.) Both offer competing characterizations of this consultation. According to Barragan, he simply relayed information to Dr. Periolat, who in turn made the decision to remove Odumabo from suicide watch. (See id. at 27-33.) Meanwhile, Dr. Periolat described the decision as a “joint recommendation” to which he assented. (DE # 167-8 at 50; id. at 42-43 (“My understanding of this [medical report] is that I agree with the fact that they put him on full suicide precautions and that I agreed that they took him off . . . . To me this means that I agree with the decision, not necessarily that I gave it to them.”).)

         Dr. Periolat's time at the Jail was limited to an average of 2-4 hours per week, during which time he managed a monthly case load that could exceed 100 inmates. (DE ## 167-1 at 40; 167-8 at 17; 167-5 at 12-16.) As such, he considered his role as being akin to a “consultant” (DE # 167-8 at 4), and he leaned heavily on Southlake staff such as Barragan to make treatment recommendations for inmates. (Id. at 32-33, 52.)

         Dr. Periolat was aware that Barragan was not a licensed clinician and that he did not have any formal training. (Id. at 6-7.) Yet, Dr. Periolat also believed from working with Barragan that he was well-qualified to make suicide assessment recommendations and had done so “hundreds” of times over the course of their professional relationship. (Id. at 52.) In Dr. Periolat's opinion, it is common for jail psychiatrists to rely on recommendations from staff such as Barragan, even though psychiatrists would not do so outside of the jail context. (Id. at 54.)

         The upshot is that, on Friday, April 28, 2007, following Barragan's telephone conversation with Dr. Periolat, Odumabo was removed from suicide watch. (DE # 143-3 at 28.) This meant that he was allowed to have normal clothes and bedding, hot meals, and “range” time outside of his cell. (Id. at 29.) He was otherwise ordered to remain under observation in a camera cell until he met personally with Dr. Periolat the following week. (Id.)

         D. Odumabo Hangs Himself in the Lake County Jail

         On Monday, April 30, 2007, at 6:20 a.m., Odumabo was found dead in his cell, having hanged himself with his bed sheet. (DE # 149-7 at 6, 8.) The two preceding days had passed largely without incident. (See DE # 149 at 11-21.) However, at around 1:00 a.m., defendant Officer Hatton learned that Odumabo had covered up his cell camera. (DE # 167-14 at 2-5.) She ordered Odumabo to uncover the camera and he complied with her directive. (Id.) Hatton then resumed her post in the control booth, where she was responsible for monitoring the rotating cameras on the fourth floor.[3] (DE # 167-10 at 3.)

         At the outset of her shift, Hatton was aware that Odumabo had been on suicide watch and that he was under observation in a camera cell for that very reason. (Id. at 9-11.) She also knew from her experience that an inmate covering his camera was potentially a sign that he will attempt to commit suicide. (Id. at 21.) A few hours later, Hatton observed Odumabo wearing his bed sheet around his shoulders, knotted in the front, in the fashion of a cape. (Id. at 22-23.) She was also aware that an inmate could use a bed sheet to harm himself. (Id. at 7.) However, Hatton did not consult any fellow officers or notify any medical personnel of Odumabo's behavior. (Id. at 25.)

         Hatton remained on watch over the next few hours, during which time she and another officer made routine rounds and observed Odumabo dozens of times. (DE # 149-12 at 50.) Odumabo was observed sleeping. (DE # 149-26 at 6.) At another point, he asked Hatton what time it was and she told him. (DE # 149-21 at 33-34.) He was served breakfast around 4:45 a.m., asked for, and received, an extra carton of milk. (DE # 149-26 at 6-7.)

         However, not long thereafter, he again covered up the camera to his cell. (DE # 167-10.) This time, however, it went unnoticed. Thus, it is not clear when he covered up his camera and how long he was out of surveillance. It was during this interval that Odumabo took his own life. He was discovered by an officer making the rounds at 6:20 a.m. (DE # 149-26 at 76.)

         E. The Cox Report

         Between 2003 and 2006, five other inmates had committed suicide while in custody at the Lake County Jail. (See DE # 167 at 16-18.) Sheriff Roy Dominguez was made aware of each suicide. (DE # 167-23 at 25-26.) After the last of those suicides, in September of 2006, Dominguez asked the National Institute of Corrections (“NIC”), an arm of the U.S. Bureau of Prisons, for assistance in evaluating and improving the suicide prevention policies at the Jail. (DE # 153 at 25; DE # 167 at 18).

         In November of 2006, Judith Cox, a corrections expert from the NIC conducted an onsite inspection of the Jail. (DE # 153 at 26; DE # 167 at 19.) On December 3, 2006, Ms. Cox delivered a written report with her findings and recommendations. (DE # 167-24.) Dominguez and Southlake administrators received copies of this report. (DE # 167-23 at 36; DE # 167-5 at 2, 3, 9.) Cox's findings highlighted several areas where she recommended that the Jail implement changes to prevent further suicides.

         One recommendation was that mental health evaluations “should only be provided by licensed mental health staff.” (Id. at 10.) This recommendation is consistent with guidance from the National Commission on Correctional Health Care (NCCHC), the Jail's accrediting body.[4] (Id. at 1; DE # 167-4 at 9.)

         The Cox Report also touched upon the topic of suicide risk assessments. Under the existing practice, according to Barragan, Southlake staff did not conduct formal suicide risk assessments. (DE # 167-4 at 41.) Cox recommended that the Jail utilize a “Structured Suicide Screening Form” and that the criteria for this form should be reviewed and approved by the psychiatrist. (DE # 167-24 at 8.) A positive answer to these questions would trigger intervention from someone higher up than the front line worker. (Id.) Cox attached a sample of this form in the appendix to her report. (Id.)

         During her inspection, Cox observed the Jail's practice of conducting mental health screenings in public areas. (Id. at 7.) In response, she recommended that such screenings take place in a more private setting, noting that “[w]ithout such an atmosphere for the screening process, the validity of inmate responses is highly questionable.” (Id. at 8.)

         Cox also recommended that the Jail implement “treatment plans” for the inmates on suicide watch. (Id. at 12-13.) NCCHC standards also call for such plans. (DE # 167-4 at 4-6.) Along those same lines, Cox also made recommendations to improve the communication between Jail staff and mental health staff. (DE # 167-24 at 18.)

         F. Response to the Cox Report

         At the conclusion of Cox's inspection, Dominguez, Warden Karen Jones, and Southlake administrators and staff participated in an exit interview with Cox. (DE # 153-20 at 8-14.) After this meeting, Dominguez ordered Jones to form a suicide response team or committee. He attended at least one meeting of this team. (Id. at 24-26, 31-32; DE # 167-23 at 7.) However, he testified that he could not remember who was part of this team, what was discussed at the meeting, whether the team met more than once, or whether the team effectuated any changes with regards to suicide. (DE # 167-23 at 7-11.)

         A month later, Dominguez fired Jones and hired Bennie Freeman as the new warden in January of 2007. (DE # 167-31 at 3.) Freeman did not have experience in jail administration. (DE # 167-27 at 9-10.) A police officer for most of his career, Freeman's only jail-related experience was the four years that he worked as a booking/correctional officer from 1985 to 1989. (Id.) Dominguez provided him with no instruction on running the Jail and did not discuss suicide and suicide prevention with Freeman. (Id. at 7, 12, 16-17.) No changes were made to the Jail's suicide prevention policies or practices while Freeman was warden. (Id. at 14.)

         No one showed the Cox report to Dr. Periolat or discussed the findings and recommendations with him prior to Odumabo's suicide. (DE # 167 at 56-57.) Similarly, no one showed or discussed the report with Barragan either. (DE # 167-33 at 5-6.) No treatment plan was ever created for Odumabo. (DE # 149-7.) Barragan did not perform a formal suicide risk assessment to evaluate Odumabo's status on suicide watch. (Id.) Sherry Oman, Southlake's Vice President for Clinical Administration testified that she did not participate in any meetings regarding the Cox Report and could not recall whether any changes were made in response to the report.[5] (DE # 167-5 at 10-11.) Southlake terminated its contract at the Jail on June 30, 2007. (Id. at 17.)


         Defendants have moved for summary judgment. Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).

         The moving party bears the initial burden of demonstrating that these requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. Once the moving party has met his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).

         III. ...

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