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Estate of Perez v. Morgan County Sheriff

United States District Court, S.D. Indiana, Indianapolis Division

January 29, 2018

ESTATE OF TAMMY PEREZ by its administrator, SHERYL PEREZ, Plaintiff,



         Tammy Perez (“Tammy”) died on October 1, 2015, after three days' confinement in the Morgan County jail (“the Jail”). Plaintiff, Tammy's estate (“the Estate”), by her mother Sheryl Perez (“Sheryl”) in her capacity as personal representative of the Estate, sued defendants Morgan County Sheriff in his official capacity[1] (“the Sheriff”), Advanced Correctional Healthcare, Inc. (“ACH”), the Jail's private healthcare contractor, one Jail doctor, [2] two Jail nurses, [3] four Jail medical officers, [4] and seven Jail officers[5]under 42 U.S.C. § 1983 for violations of the Eighth Amendment and state-law negligence.

         Now before the Court are the Motion for Summary Judgment, Dkt. 84, filed by the Sheriff, the Jail nurses, the Jail medical officers, and the Jail officers (together, “the Morgan County Defendants”), and the Motion for Partial Summary Judgment, Dkt. 87, filed by ACH and the Jail doctor (together, “the ACH Defendants”), seeking judgment on the Estate's federal claims only.

         The Estate concedes that, of the Morgan County Defendants, two Jail medical officers[6] and four Jail officers[7] are entitled to judgment in their favor. Pl.'s Resp. Br. Opp. Mots. Summ. J. (Dkt. 97) 2-3.[8] The Morgan County Defendants' motion is therefore granted as to those defendants without further discussion. For the reasons below, as to the remaining Morgan County Defendants, their motion is granted in part and denied in part. The ACH Defendants' motion is granted in part and denied in part. The bases for these rulings are explicated below.

         Facts and Procedural History

         We state the facts and the inferences from them in the light most favorable to the nonmovant, the Estate. The following account is therefore necessarily one-sided. “We do not vouch for the objective truth of every detail of the following account [n]or take any position as to [the Estate]'s ultimate chance of success on the merits.” Berry v. Peterman, 604 F.3d 435, 438 (7th Cir. 2010).

         I. Tammy's Background: August 11, 1981, to September 27, 2015

         Tammy was born on August 11, 1981, with “congenital adrenal hyperplasia due to adrenal steroid 21-hydroxylase deficiency[, ]” Dkt. 96 Ex. 2 (Schnall Rep.), at 2, “the most common form of congenital adrenal hyperplasia.” Id. at 4. Deficiency of 21-hydroxylase depresses the production of certain critical steroids by the adrenal glands. In Tammy's case, this steroid imbalance during prenatal development meant “[s]he was a girl getting more male hormone, so when she was born, her private area was not as it should have looked.” Dkt. 86 Ex. 1 (Sheryl Dep.) 42:3-5. As a result, Tammy had “maybe 10” genital reconstruction surgeries during her life. Id. at 42:14.

         Also as a result of her adrenal hyperplasia, Tammy “required daily hormone replacement therapy to prevent cardiovascular collapse/arrest.” Dkt. 96 Ex. 4 (Sozio Rep.), at 2. More specifically, adrenal hyperplasia due to 21-hydroxylase deficiency

may occur in a ‘classical' or ‘non-classical' form. The majority of patients with the classical form become very ill within 24 to 48 hours if deprived of their steroid replacement medication . . ., and develop severe dehydration and electrolyte imbalances, often resulting in death. Patients with the non-classical form . . . can often tolerate being off steroid replacement medication for several days without any serious medical consequences, as long as they are not under any abnormal physical stress. Physical stress causes the body to need higher than normal amounts of adrenal steroids.

Dkt. 96 Ex. 2 (Schnall Rep.), at 4. The adrenal glands of adrenal hyperplasiacs “who have taken adrenal steroids chronically . . . lose the ability to automatically produce” the higher steroid levels required by the body under stressful conditions, id., requiring “double or triple” the ordinary dose of replacement steroid. Dkt. 96 Ex. 6 (Gavin Dep.) 17:12. The classical form may be further divided into “salt-wasting” and “non-salt-wasting” forms, of which the salt-wasting form is the more severe, id. at 35:4-6, apparently depending on whether the patient's adrenal insufficiency requires replacement of both aldosterone and cortisol, in the salt-wasting form, or of cortisol only, in the non-salt-wasting form. See Dkt. 96 Ex. 3 (Schnall Dep.) 27:1-28:23.

         Tammy appears to have had classical adrenal hyperplasia, which may have transitioned in her youth or early adulthood from the salt-wasting to the non-salt-wasting form. Id. at 27:9-14. For her steroid replacement therapy, “[d]uring [Tammy's] late teenage years her primary adrenal steroid medication was changed from hydrocortisone to dexamethasone . . . [, ]” Dkt. 96 Ex. 2 (Schnall Rep.), at 2, and Tammy remained on dexamethasone until her death. Tammy and Sheryl “were advised by [Tammy's] endocrinologists that she could die of adrenal crisis if her steroid replacement was not maintained adequately.” Id. Sheryl was convinced of the importance of Tammy's dexamethasone and ensured that Tammy took it regularly, even after Tammy had moved out of Sheryl's house at age 18. Tammy kept her dexamethasone at home and in her purse, and Sheryl would keep a few pills from each prescription refill at her own house, in case Tammy needed them there.

         Tammy also suffered from fibromyalgia and arthritis in her back and hands, and “always told [Sheryl] her whole body hurt[].” Dkt. 86 Ex. 1 (Sheryl Dep.) 109:1-2. By 2010, while living in Bloomfield or Bloomington, Indiana, Tammy was seeking pain treatment from a doctor in Terre Haute, Indiana, who “pushed pills.” Id. at 79:22. In 2011, she reported that “[n]othing [took] [her] pain away. Taking [her] meds help[ed] and taking hot baths sometimes.” Id. at 87:11-12. Tammy would often take hot baths or hot showers to alleviate pain and discomfort. By 2013, Tammy was “taking opiates chronically for back pain.” Id. at 99:18. Around the same time, Sheryl began to suspect that Tammy was a “chronic substance abuser[.]” Id. at 78:9-11. Eventually Tammy admitted to Sheryl to using heroin.

         Sheryl saw Tammy suffer from heroin withdrawal “[m]aybe twelve times.” Id. at 96:25. Sheryl went with Tammy to the hospital for Tammy's withdrawal “maybe six or seven times.” Id. at 96:19. Sheryl observed that Tammy's withdrawals appeared to have “different levels.” Id. at 97:22. At their mildest, Tammy's withdrawals caused her to feel “sick” and “irritable . . . .” Id. at 98:1. At their severest, Tammy would “throw[] up and couldn't get it to stop.” Id. at 98:7-8. “If [Tammy's vomiting] continued for maybe three or four hours and [Sheryl] couldn't get her to stop[, ]” Sheryl would take Tammy to the hospital. Id. at 98:11-12. For that reason, Sheryl never saw Tammy go through severe withdrawal for more than one day. Id. at 169:13-14. Sheryl and Tammy understood that Tammy was supposed to “double up on her [d]examethasone” when Tammy's vomiting was severe, id. at 105:18-23, and Tammy's ability to keep the medication down during these episodes “was always [Sheryl's] main concern.” Id. at 108:21. When Tammy was treated by emergency room doctors at her hospital visits for severe vomiting and nausea, they “treated her with either IV fluids or with anti-nausea medication in an other-than-oral route.” Dkt. 96 Ex. 3 (Schnall Dep.) 44:18-20. In at least one instance, Tammy was given her dexamethasone intravenously as well. The hospitals' treatment of Tammy was thus “effective for dehydration and adrenal insufficiency, in every instance” for which there is record evidence. Id. at 47:21-22.

         On March 7, 2015, Tammy was arrested for possession of a narcotic drug and three related offenses, and, after three days in the Jail, was released pending trial. She agreed to plead guilty to the possession charge in exchange for dismissal of the balance. Tammy's case was set for a sentencing hearing on September 28, 2015. The night before, September 27, 2015, Tammy used heroin for the last time, expecting, on the advice of her lawyer, to be sentenced to home detention rather than incarceration.

         II. Tammy's First Day in Jail: September 28, 2015

         On the morning of Monday, September 28, 2015, Morgan Superior Court imposed a 547-day sentence on Tammy, 90 days executed and 457 days suspended to probation. The abstract of judgment noted that Tammy's “[e]xecuted time may be spent in in patient [sic] treatment facility upon admission[.]” Dkt. 86 Ex. 1 (Sheryl Dep. Ex. 44), at 35. As Tammy's incarceration was unexpected, neither Sheryl nor Tammy had brought Tammy's medication to the sentencing hearing. Once Tammy had been remanded to the Sheriff's custody, Sheryl went to Tammy's house and picked up her medications, including her dexamethasone. Sheryl brought them to the Jail before noon and asked to speak with a nurse or a doctor.

         Sheryl spoke with Anderson, the on-duty Jail medical officer, [9] and Nurse Burnam, the on-duty Jail nurse. At the time, Anderson worked the Jail's day shift, from 8:00 a.m. to 4:00 p.m., on weekdays, and Nurse Burnam worked a similar shift, weekdays from 8:00 a.m. to 4:00 p.m., or from 9:00 a.m. to 5:00 p.m. Sheryl had brought four medications for Tammy and delivered them to Nurse Burnam. Sheryl made clear to Nurse Burnam that she “didn't care if [Nurse Burnam] gave [Tammy] the other[s] . . ., ” but that Tammy “had to have [the dexamethasone] every single day.” Dkt. 86 Ex. 1 (Sheryl Dep.) 185:21-24. Nurse Burnam acknowledged Sheryl's directive and “assured [her] that they knew that [Tammy] had to have that medicine.” Id. at 187:1-2. Sheryl “went into detail about what the issue was” that necessitated the dexamethasone, though Anderson could not later recall “that [Tammy's having an adrenal gland disorder] was exactly what it was.” Dkt. 86 Ex. 10 (Anderson Dep.) 9:22-24.

         Anderson then called Dr. Everson, the Jail doctor, who was not on duty at the Jail that day, and requested approval to administer the four medications to Tammy. Dr. Everson approved three of the medications, including the dexamethasone, but not the fourth, mirtazapine, “a mental health medication, usually . . . used to treat depression, sometimes . . . used . . . as a sleeping pill.” Dkt. 86 Ex. 5 (Everson Dep.) 45:7-9. Anderson began a Medication Administration Record (“MAR”) “that would document when Tammy . . . would receive scheduled medication in the [Jail].” Dkt. 86 Ex. 8 (Burnam Aff.) ¶ 4.

         Around 10:00 a.m., September 28, 2015, Martin, a Jail officer, recorded an assessment of Tammy. Martin noted that Tammy “appear[ed] to be under the influence of heroin” and admitted using heroin the night before. Dkt. 86 Ex. 6 (Mundy Dep.) 48:18- 19. Tammy also admitted to Martin that she was dependent on heroin, which Martin recorded. Martin recorded further that Tammy reported taking two medications, dexamethasone and Suboxone, a drug used to treat opioid addiction, though Suboxone was not among the medications Sheryl had delivered to the Jail for Tammy.

         After Martin completed Tammy's book-in procedure, Tammy was placed in cell R2, a cell near the Jail's receiving area known as the women's “drunk tank.” Dkt. 86 Ex. 12 (Martin Dep.) 8:9-16, 11:9-23.

         III. Tammy's Second Day in Jail: September 29, 2015

         Around 4:30 a.m., Tuesday, September 29, 2015, Tammy called Sheryl for Tammy's Jail-allotted twelve-second phone call. Tammy asked Sheryl to pick up her Suboxone prescription. Sheryl asked, “What about rehab?” Dkt. 86 Ex. 1 (Sheryl Dep.) 38:22. Tammy told Sheryl not to worry and that Tammy would “take care of it in here.” Id. at 38:24. Tammy sounded “[g]roggy, like somebody that just, you know, woke up, wasn't feeling well.” Id. at 39:20-21. It would be the last time Sheryl spoke with her daughter.

         Around 8:00 a.m., Nurse Burnam administered Tammy's dexamethasone orally.

         Between 2:00 p.m. and 3:00 p.m., Stacey McLaughlin (“McLaughlin”) was booked into the Jail. As her book-in procedure was completed in the Jail's receiving area, McLaughlin “could hear [Tammy] retching from the outside[;] [McLaughlin] could hear [Tammy] being violently ill when [McLaughlin] was outside when [she] had just arrived there. . . . And [McLaughlin] could hear someone being violently ill over and over again and then [the Jail officers] moved [McLaughlin] into that cell [R2].” Dkt. 96 Ex. 8 (McLaughlin Dep.) 14:25-15:5. When McLaughlin entered the cell, “Tammy was somewhat coherent . . . .” Id. at 14:24. But “[w]ithin an hour she was incoherent, [and] could not talk anymore.” Id. at 15:6-7.

         Tammy “was too sick” to make any introductions. Id. at 23:9. “[S]he mumbled and said something like she was really ill . . . .” Id. at 23:9-10. McLaughlin found it difficult to concentrate on Tammy's plight at first because McLaughlin was “a little disgusted” that she had been put into a cell with “vomit on the wall” and a person who “c[ould]n't get up to vomit into . . . the toilet . . . in very close quarters.” Id. at 23:5-6, 23:1, 23:4-5.

         Throughout the afternoon, prior to the inmates' supper being served, as observed by McLaughlin and her fellow inmate in R2 Michelle Rose (“Rose”), Tammy continued to deteriorate:

[Tammy] just was getting sicker. She wasn't talking as much. The vomiting was really bad. She would knock on the door, we would knock on the door saying she needed help. At one point it was a mess. I mean there was vomit on the walls, there was vomit on the floor, there was vomit on the mats, you know, and we are all exposed to this. . . . [I]t was very apparent this young woman needed to go to the hospital . . . .

Id. at 25:2-13.

         Around 4:50 p.m., Tammy was examined by Nurse Burnam. Tammy complained to Nurse Burnam of suffering from heroin withdrawal. Specifically, Tammy's “subjective complaint was heroin withdrawal and she had been vomiting for . . . one to two hours[.]” Dkt. 86 Ex. 5 (Everson Dep.) 34:11-13. Nurse Burnam recorded her objective assessment of Tammy as follows: “stomach hurts, diarrhea, slightly dehydrated, skin clammy, mostly dry heaves, small amount of yellow stomach bile present.” Id. at 34:16-18. Nurse Burnam assessed Tammy's dehydration by a skin turgor test, that is, Nurse Burnam “pulled the skin up on [Tammy's] hand and it was a little slow going down.” Dkt. 86 Ex. 4 (Burnam Dep.) 13:22-23. Tammy's blood pressure was 118/78; her pulse was 82 beats per minute; and her temperature was 97.6 degrees Fahrenheit.

         Nurse Burnam, who, as a nurse, was not authorized to prescribe medications, called Dr. Everson, who was not at the Jail that day, and reported her findings and assessment. Dr. Everson agreed that Tammy was suffering from heroin withdrawal and ordered a “withdrawal protocol, which consisted of a one time dose of [P]henergan and administrations of [V]istaril and [B]entyl, twice a day for five days.” Dkt. 86 Ex. 1 (Burnam Aff.) ¶ 6. Those medications, among other effects, “help[] with nausea, vomiting, diarrhea[, ]” Dkt. 86 Ex. 6 (Mundy Dep.) 26:1, and were pills to be taken orally. Nurse Burnam recorded that any follow-up was to be at the “inmate's request[, ]” or, in other words, “[i]f Tammy felt like she was getting worse, she was to let [Jail staff] know.” Dkt. 86 Ex. 4 (Burnam Dep.) 14:16, 14:21-22. There was no “plan to determine whether once [Tammy] took [the withdrawal protocol medications] and . . . if she was still vomiting whether she would be able to keep [the medications] down[, ]” id. at 15:11- 14, though Nurse Burnam understood that the medications would not have had “any [e]ffect” on Tammy if she were unable to keep them down. Id. at 15:16.

         After Nurse Burnam examined Tammy and the inmates had their supper (excepting Tammy, who did not eat), Tammy's deterioration progressed rapidly:

Let me tell you something, I have never seen so much fluid leave a body in my life. I don't want to get teary-eyed. I have never seen anything like this. . . . They gave [Tammy] a drink of water and she vomited. I mean a sip. And when she vomited up, I mean they gave her a sip of water and she would vomit up that much.
We were beating on the doors because she couldn't make it to the trash can so then they brought her this sack. They probably carried out four or five of those bags. And they looked like giant colostomy bags when they were leaving. They gave her medicine and we told them you can't give her pills, she throws them up immediately. . . .
But they did let her out at one point because she lost control of her bowels and she was laying down at one point and she said, “Oh, no, ” and she knew that she had lost control of her bowels so she started beating on the door. . . . [I]t was very apparent this young woman needed to go to the hospital and we told them that [after dinner].

Dkt. 96 Ex. 8 (McLaughlin Dep.) 23:20-24:16.

         By 8:00 p.m., Nurse Mundy, the Jail nurse who worked the evening shift, which lasted from approximately 4:00 p.m. or 5:00 p.m. until approximately midnight (though Nurse Mundy usually left around 10:00 p.m.), had relieved Nurse Burnam. Around 8:00 p.m., Nurse Mundy delivered Tammy's Vistaril and Bentyl:

[After dinner there was a medical pass] and they gave her a pill. . . . And she immediately vomited it up. And at that point we even told them she needs-I think at that point the first medical pass, we told them she needed to go to the hospital because she was getting dehydrated and that she could not keep anything down. . . .
What [Jail staff] do is you pound on the door again and say is [medical staff]-are they coming, and they say, yeah, we let them know and then maybe an hour later someone might come, or they may not.
[But] they came for the medical pass. And I am going to tell you, the nurse person [Nurse Mundy] was very insensitive, she was rude. She was like drink lots of fluid, here is some Pepto Bismol, . . . and she was very rude. . . .
[S]he was exasperated and was like here is Pepto Bismol, here is some water type thing.

Id. at 26:13-21, 29:8-17, 32:23-25. Nurse Mundy later delivered Tammy's Phenergan, though that delivery was not recorded on Tammy's MAR:

Later [Nurse Mundy] came [for a second medical pass] and she may have given her I think it was Phenergan. I don't know what it was, but it was in a pill form. [Tammy] threw it up. [Nurse Mundy] came again because we pounded on the doors and we tried to explain to her [that Tammy] needs to go to the hospital and get a shot, she is throwing everything up, it is doing no good. We told them-told [Nurse Mundy that Tammy] can't even hold down a sip of water. If anything touched her lips, a gallon of something came out. . . .
[T]here is no compassion when someone is going through withdrawal. . . . [Nurse Mundy] was just being rude. . . . You can be professional and you can be compassionate. It doesn't mean you have to stroke their head or anything, but you can be professional and you can be neutral, but you can at one point just talk like someone is not a very nice person and doesn't really deserve any treatment or help and that's how [Nurse Mundy] addressed [Tammy]. . . . It was worse than cold. Cold I understand. Cold is like trying to remove yourself from the situation because it might bother you or, you know, you just don't care. It was beyond that. It was disdain. That's the best way I can describe it, disdain.

Id. at 32:25-33:8, 33:21-22, 34:2-10, 34:15-20.

         IV. Tammy's Third Day in Jail: September 30, 2015

         As Tuesday, September 29, 2015, passed into Wednesday, September 30, 2015, Tammy's condition continued to worsen:

Throughout-I mean, throughout the night later perhaps is when she started, and it may have been early in the morning, like I said, you lose time in [the Jail]. I mean she was getting sicker and sicker. She moved to the floor by this time. I am pretty sure she was lying on the floor. . . . [I]t is all a blur at this point, but [Tammy] was getting more ill, she was becoming more incoherent, but I could tell you at certain points she was lying on the floor, she beat on the floor and said, “Help me, help me.” She was lying on the floor saying, “Help me, please. Help me. She was begging for help . . . loud enough that they could have heard her.

Id. at 36:11-37:1. At some point Tammy abandoned her efforts to vomit into a trash can or toilet and began to “just turn[] her head . . . .” Id. at 38:24. “[A]ll of a sudden [McLaughlin] heard [Tammy] go, ‘Oh, shit.' . . . [A]nd she said, ‘I shit myself.' And she was really embarrassed and . . . that is the first time she started pounding on the door . . . asking to be cleaned up.” Id. at 39:13-17.

         Schwab and J. Smith were Jail officers on the Jail's night shift, which lasted from approximately 12:00 a.m. to approximately 8:00 a.m. J. Smith was the shift supervisor and Schwab's superior. No. nurses or doctors were on duty at the Jail during the night shift.

         As reported by McLaughlin, “[a]t the point that [Tammy] started losing control of her bowels, [Schwab] was nice enough to take her out, let her take a shower.” Id. at 37:5- 6. In fact, Tammy was allowed two showers over the course of the night shift. As Rose observed, “Tammy [had] los[t] control of her bodily functions and . . . repeatedly soil[ed] herself and her clothing with her own vomit and feces.” Dkt. 96 Ex. 9 (Rose Aff.) ¶ 12. And Tammy “not only soiled herself and her clothes, but also the cell area we shared.” Id. ¶ 13. Accordingly, Schwab “removed Tammy from her cell, took her to the shower so she could wash the vomit and feces off . . . [, ] and returned her to the cell.” Id. ¶ 14. But “[t]hese measures only worked temporarily, as Tammy's nausea and diarrhea were so bad that she quickly soiled her jail clothing.” Id. ¶ 15.

         During Tammy's showers, Schwab observed Tammy “sitting down in the shower just letting the water run over her after she cleaned herself, . . . sitting there leaning against the wall.” Dkt. 86 Ex. 11 (Schwab Dep.) 12:16-17, 12:21. Eventually Schwab and J. Smith grew “a little exasperated . . . and that's when they said this is the last time, we can't do this again, you need to make it to the toilet.” Dkt. 96 Ex. 8 (McLaughlin Dep.) 40:7-10. “Try to make it to the toilet, you're an adult, ” Schwab told Tammy. Dkt. 86 Ex. 11 (Schwab Dep.) 12:3. But Tammy could not, and “it happened again throughout the middle of the night but no one let her clean herself up that time.” Dkt. 96 Ex. 8 (McLaughlin Dep.) 40:10-13.

         Tammy was “left . . . in her cell for hours in jail clothing drenched in her own vomit and feces.” Dkt. 96 Ex. 9 (Rose Aff.) ¶ 16. During this time, Tammy was “throwing up constantly, her eyes [were] starting to sink back into her head, she look[ed] like she ha[d] lost 20 pounds, it [was] very apparent. She [was] mumbling, she [could] barely speak at this point . . . .” Dkt. 96 Ex. 8 (McLaughlin Dep.) 40:22-41:1.

         Around 4:30 a.m., Tammy tried to call Sheryl again, as she had the day before. But “you've got to go in there and pay money to have your phone set up to receive phone calls [from the Jail], and [Sheryl] hadn't done that.” Dkt. 86 Ex. 1 (Sheryl Dep.) 40:18- 21. Sheryl went to have her phone set up that same day, but would not receive another phone call from Tammy.

         Around 8:00 a.m., Nurse Burnam administered Tammy's dexamethasone, Vistaril, and Bentyl orally. Around the same time, Tammy's fellow inmates “told [Jail staff] you are giving [Tammy] medicine and it is doing no good because she throws it up.” Dkt. 96 Ex. 8 (McLaughlin Dep.) 49:3-5. Tammy did not eat breakfast.

         Between 9:00 a.m. and 10:00 a.m., now the Jail's day shift, on-duty Jail officers removed Tammy from her cell for another shower. This would be the last McLaughlin and Rose would see of Tammy. “[A]t this point, [Tammy] looked really, really bad. . . . That's when her eyes were sunken down in the back of her head, everything.” Id. at 49:13-16. Tammy's vomiting and diarrhea had continued unabated. Such was Tammy's distress that “when she took a drink of water, she would vomit a little bit and then she would spit it out and then she would take in her cup and then she take another drink of water.” Id. at 43:21-24 (sic passim). McLaughlin was horrified and disgusted. The volume of Tammy's vomiting and diarrhea made McLaughlin shocked to learn “the human body had that much ...

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