Lead Opinion
The appellants in this § 1983 action argue that the district court erred in denying them summary judgment on the basis of qualified immunity. We affirm the district court’s denial of summary judgment as to one of the appellants, Karen Juris. We reverse the district court’s order as to the remaining appellants; we hold that they are entitled to summary judgment on qualified immunity grounds.
On February 17,1991, the Baldwin County Juvenile Court, having adjudged David Doli-hite in need of supervision, ordered David committed to the Eufaula Adolescent Center
David’s parents, individually, and David’s father, as his next friend (“the plaintiffs”), brought this § 1983 action against various mental health professionals and administrators working for or under contract with ADMHMR. The individual defendants include: Bradley Mazick, Ph.D., Eufaula’s clinical director; Karen Juris, a Eufaula social worker; Andrew McBride, a licensed psychologist with Eufaula; Medical Money Management, Inc., a private corporation under contract with ADMHMR to provide psychiatric services to Eufaula; Drs. Robert Mau-ghon
The Dolihites allege that the defendants violated David’s substantive rights under the due process clause of the Fourteenth Amendment set forth in Youngberg v. Romeo,
This opinion will set out the background facts and the relevant law and then address the entitlement of each defendant to qualified immunity. In the summary judgment posture of this case, we take all reasonable factual inferences in favor of the plaintiffs below. However, the plaintiffs bear the burden of proof. With respect to each appellant, we have taken the relevant facts as identified by the district court and supplemented same as necessary to evaluate whether a reasonable public official could have believed that the actions of each appellant were lawful, in light of the clearly established law and in light of the information possessed by each appellant.
I. BACKGROUND FACTS
In February of 1991, the Baldwin County Juvenile Court adjudged David Dolihite in need of supervision because of David’s problematic behavior at home and at school.
By January 23,1992, David had been evaluated by three of the defendants — Dr. Mau-ghon, a psychiatrist, Juris, a social worker, and McBride, a psychologist.
Ten days after David’s arrival, the psychiatrist Dr. Jenkins and appellants McBride and Juris became members of David’s treatment team and, as such, signed David’s master treatment plan. The treatment plan noted, among other things, that David suffered an active suicidal ideation and gesture problem, and it prescribed weekly, thirty-minute individual therapy sessions as well as a weekly forty-five-minute group session.
David exhibited self-destructive behavior while at Eufaula, including making suicidal threats and gestures. The following incidents occurred while David was at Eufaula and are documented in his Eufaula record unless otherwise indicated. On January 26, 1992, a nurse treated David for a deep puncture wound in his left wrist. David told the nurse that he “was going to cut his arm off and kill himself.” David was placed on continuous observation, i.e., one-on-one observation, until the next day when Juris, after completing a suicide assessment, moved him to close observation with one-hour checks.
In David’s Progress Notes dated February 4, Juris indicated that David had presented as extremely irrational during the previous week; she added that he was not out of touch with reality. On the afternoon of that day, David injured himself, creating an ulcer one centimeter in diameter on his left wrist. On February 13, a staff member reported that David wrote with a rock on the security screen over his window, “Oh, God I want to die, please take me or I’ll commit suicide,
On February 18, David was talking to himself and advised a nurse that he was talking “to a friend who told him what to do.” On February 24, a staff member found David sitting on the floor in his room beside the figure of a star he had made of salt, cutting into a sore on the back of his wrist with .his belt buckle, and allowing blood to drip onto the star. David told the staff member he was a devil-worshipper. David later that day wrote the staff member a note which indicated that he was not talking because the devil told him not to. On March 2, Juris indicated in David’s Progress Notes that he continued to enjoy the “shock value” of talking about suicide.
On March 8 at about 2:45 p.m., David cut his arm with a piece of metal. A staff member described the incident in David’s Progress Notes: “When I arrived in the dorm he was standing in the bathroom and his left arm in the sink and the H2O running, bleeding profusely from a cut to his left arm....” David was taken to the emergency room. The cut required ten stitches and, as indicated by Juris on David’s suicide assessment form, was “fairly lethal due to vertical, wide cut and possibility of loss of excessive blood.”
Around 4:45 p.m. the same day, David removed the sutures with his teeth. He told the Eufaula nurse that “he was going to kill himself and he was not going to have sutures put in” and “would remove them again.’ The nurse notified Dr. Jenkins about David’s behavior. Over the phone, Dr. Jenkins prescribed 25 mg of Vistaril, a tranquilizer, and authorized the use of soft restraints. David was taken to the emergency room again. Juris ordered David placed on continuous, i.e., constant, observation.
The next day Juris completed a suicide assessment form on David. According to her notes, David denied suicidal intent, psychotic symptoms, and feelings of depression, but admitted self-injurious thoughts due to problems with peers. Although David’s act of cutting himself and pulling his sutures out on March 8 was apparently determined to be a suicidal gesture or attempt, David was never seen by the psychiatrists or by Dr. Maziek nor was his treatment plan altered.
On March 15, David was secluded for “failure to follow rules, bleeding on walls and defecating on floor” in the time-out room. Once secluded, David continued to spit blood on the walls of the seclusion area.
On March 18, David stuck a pencil in his wound of March 8. He was again taken to the emergency room. Dr. Nixon, having treated David twice for his self-inflicted wound of March 8, requested David be evaluated by a psychiatrist. She wrote, “This child MUST be evaluated for anti-psychotic medication.”
On Saturday, March 21, at 9:25 p.m., a staff member ordered David placed in seclusion after David destroyed facility property, threatened to cut himself with a piece of glass, and stated he was going to hurt himself if he got the chance.
On Sunday, March 22, around 9:30 p.m., a mental health worker restricted David to the time-out room for destroying facility property.
On Tuesday, March 24, at 8:45 a.m., Juris met with David. The Progress Notes indicate that the two of them discussed the previous weekend, specifically David’s destruction of property and aggression. Neither in the Progress Notes themselves nor elsewhere in David’s record is it documented that Juris knew about the weekend hanging attempt.
Her Progress Notes of March 24 also indicate that she had left instructions for the dorm staff to take David off close observation status on the morning of March 21 if March 20 had been uneventful. According to the Progress Notes, the dorm staff did not receive that order. Juris renewed the order effective 1:20 p.m. on March 24.
Although David’s records do not reveal that Juris knew of the attempted hanging, the plaintiffs presented evidence that Juris did know about the incident. A former Eu-faula resident, John Fowler, signed an affidavit stating:
I was in the time-out room on March 22, 1992.... David did try to hang himself. Ms. Juris knew this because the next day, David and I talked with Ms. Juris about it. Ms. Juris spoke to both of us together about David trying to hang himself the night before. She knew David had tried to hang himself and she confronted us together about it and David admitted it in her presence and in my presence.
At 3:30 p.m. on March 24, after David went off close observation, Dr. Maziek and David
Shortly afterwards, at 4:10 p.m., David was found hanging in his dormitory room closet by a shoestring. Emergency CPR was performed and David was resuscitated. He was then sent to Children’s Hospital in Birmingham where it was determined that he suffered severe hypoxic brain damage. According to the district court, as of March, 1994, David remained in serious condition and functioned at the level of a three-year old.
The record reflects that during David’s seventy days at Eufaula, he received three and one half hours of individual therapy with Juris, a social worker, and six hours of group therapy. He was secluded for a period of fourteen hours, on dorm restriction for ten days, and in time-out for sixty-four hours. He was only seen by a psychiatrist twice, once upon admission and again on March 19. Dr. Mazick, the staffs Ph.D. psychologist, saw David briefly on March 24.
In the affidavits of Billy Kirby and John Fowler, as well as the testimony of Allen Forte, the plaintiffs presented evidence that at Eufaula there was gang activity, violence between residents, and abuse by the staff. John Fowler stated that David came to his room once to hide from gang members, that he told Juris that gang members were threatening David, and that staff allowed gang members to mistreat other residents. He also claimed that the Eufaula staff hit and cursed at the residents,
The appellees also introduced the Eufaula FY 91-92 Advocacy Report as evidence that violence was rampant at Eufaula, That report indicated that thirty-three complaints were filed by residents. However, the report itself does not indicate the substance of more than a few of those complaints.
II. DISTRICT COURT’S DECISION
The district court, in denying the defendants’ motions for summary judgment, stated that under the Eighth Amendment “[i]t is well settled that state governments possess ‘a constitutional obligation to provide minimally adequate medical care to those whom they are punishing by incarceration,’ ” Dolihite v. Videon,
The district court, in elucidating the law to be applied, set forth the rule established in Romeo, which held that “liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”
With respect to Juris, a social worker and David’s primary therapist, the district court focused on the Fowler affidavit which indicated that Juris knew about the March 22 attempted suicide. The court also concluded that a jury could find that she did in fact read the portion of David’s record which indicated that he had attempted to hang himself. Id. at 931-32. There being evidence that she knew of the suicide attempt of March 22, but failed to take steps to prevent David from attempting suicide, the district court determined that our precedent under Greason dictated a conclusion that her actions, taken in the light most favorable to the plaintiffs, would amount to deliberate indifference thus precluding summary judgment on qualified immunity grounds.
The district court denied the other defendants’ motions for summary judgment. All the defendants here appeal that court’s denial of their motion for summary judgment on qualified immunity grounds. We first set forth the appropriate qualified immunity analysis, and then we address the facts and law relevant to each individual appellant’s case.
III. QUALIFIED IMMUNITY
The denial of qualified immunity is a question of law to be reviewed de novo. Swint v. City of Wadley,
The qualified immunity analysis requires the court to determine whether a defendant violated clearly established constitutional law.
Qualified immunity is intended to give officials the ability to anticipate when their conduct may give rise to liability for damages. Anderson v. Creighton,
In Anderson, the Supreme Court described the qualified immunity analysis:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Our courts have applied an objective reasonableness test to qualified immunity cases. In each circumstance, taking the facts known to the particular defendant, “the relevant question on a motion for summary judgment based on a defense of qualified immunity is whether a reasonable official could have believed his or her actions were lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.” Stewart v. Baldwin County Bd. of Educ.,
As a general matter, under Romeo the involuntarily civilly committed have liberty interests under the due process clause of the Fourteenth Amendment to safety, freedom from bodily restraint, and minimally adequate or reasonable training to further the ends of safety and freedom from restraint.
Although Romeo establishes that the involuntarily civilly committed have certain due process rights and that those rights are at least as extensive as the rights of the criminally institutionalized, that broad legal truism is insufficient to clearly establish the law for purposes of overcoming the appellants’ qualified immunity claims in this ease.
We will address the facts relevant to each individual appellant in light of the relevant case law. We must determine whether that law clearly established the conclusion that a
IV. THE APPELLANTS
A. Karen Juris
As David’s primary therapist, Eufaula social worker Juris had the most frequent contact with David during his time at Eufaula. She conducted a social history on him when he was admitted; she knew he reported having threatened and or attempted suicide before his arrival; she was on his treatment team; she was assigned to counsel him weekly for one half hour and to act as co-therapist during his weekly group therapy session;
As the district court indicated, our precedent in Greason,
The question here is a narrow one: whether Brown’s failure to monitor Greason after having been warned by Greason’s parents and two inmates that Greason had tried to commit suicide constituted deliberate indifference.
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.
Id. at 835-36 (footnotes omitted). The court affirmed the district court’s denial of Brown’s motion for summary judgment on qualified immunity grounds, concluding “that a reasonable person in Brown’s position would have known that his provision of care constituted deliberate indifference to Greason’s eighth amendment rights.... ” Id. at 836.
The situation in this case is comparable to that of Brown in Greason. Juris admits that she knew of David’s history of mental illness, i.e., his suicide threats and attempts or gestures and his self-injurious behavior. If a jury found that she knew of his self-injurious behavior over the weekend
Because the constitutional violation on such facts was clearly established in Grea-son, we conclude that plaintiffs-appellees have adduced sufficient evidence to support findings of fact which would constitute a violation by Juris of clearly established constitutional rights. Thus, we affirm the district court’s denial of summary judgment with respect to Juris.
B. Andrew McBride
McBride, a staff psychologist at Eufaula, conducted one of David’s initial evaluations and was on David’s treatment team. His primary contact with David appears to have been as co-facilitator of David’s group therapy sessions. McBride knew about David’s history and many of the incidents which occurred while David was at Eufaula. The plaintiffs contend that McBride should be liable because he failed to take action after David’s hanging attempt. However, the plaintiffs do not argue that McBride knew about David’s March 22 hanging attempt.
The fact that McBride did not know about the hanging attempt sets his situation apart from Juris’. McBride indicated that during Monday morning community meetings, the residential staff would report to clinical staff what of importance happened over the weekend. The plaintiffs allege that McBride saw the seclusion report. McBride, however, testified that he read the March 23 Progress Note but was only “informed” of a seclusion report. The Progress Notes recorded on March 23 indicated that on both March 21 and March 22 David was secluded, in part, for attempting to do harm to himself. This information is substantially the same as that which would have been available had he read the March 21 and March 22 seclusion reports. Thus, there is no evidence McBride was apprised of the hanging attempt, but he was on notice that David’s self-injurious tendencies persisted through the weekend.
McBride’s failure to inquire further and seek out the record for closer inspection should be considered in light of the fact that the clinical staff not on duty on weekends apparently regularly relied on the residential staff to report important incidents occurring on weekends and that neither the residential staff nor the portion of the record McBride reviewed indicated that David’s threats to do harm to himself involved a hanging attempt. Also, the appellees do not assert that McBride knew about or took part in the decision to take David off close observation.
Although the plaintiffs presented as evidence an affidavit from an expert which stated that Andrew McBride “failed to meet the basic professional standards in the evaluation, assessment, and treatment” of David, the affidavit does not with any specificity indicate how McBride’s evaluation and treatment of David failed to meet basic professional standards. A conclusory affidavit of this nature provides little support for the appellees’ claim.
The Dolohites also allege that McBride should be liable because he failed to recommend that David be transferred to another facility even though he considered David actively suicidal and knew that Eufaula’s policies did not authorize admitting actively suicidal patients. See Eufaula Adolescent Center Policy No. 3.47, Admission Criteria, # 2.E. However, no cases hold that a government official’s violation of facility or department policy, without more, constitutes a constitutional violation. See, e.g., Edwards v. Gilbert,
The case at bar is different from Howell. In Howell, the facility medical staff indicated to the superintendent that the “prisoner could not be treated under the then current conditions” of the facility. In the case before us, the record indicates that the Eufaula staff could have treated David. Even the plaintiffs’ experts do not contend that Eufaula was not equipped to treat David. Rather, the expert affidavits simply point to deficiencies in the actions of Eufaula’s professional personnel.
We conclude that the facts adduced by appellees fail to show that defendant McBride violated clearly-established constitutional law.
C. Medical Money Management, Dr. Chester Jenkins, and Dr. Robert Mau-ghon
1. The Medical Money Management Contract
Drs. Jenkins and Maughon were psychiatrists who, as employees of Medical Money Management, Inc., were under contract with Eufaula to: provide psychiatric services on a consulting basis, admit residents, write initial treatment plans, determine patients’ admitting diagnoses, prescribe medications, perform medication reviews, examine residents before discharge, provide expert testimony in court, and provide twenty-four hour call coverage. As physicians under contract with the state, the psychiatrists were state actors subject to liability under § 1983. See West v. Atkins,
The district court concluded that the psychiatrists, as members of David’s treatment team, had broad authority and implicitly broad responsibility notwithstanding their allegedly limited duties under the Medical Money Management contract. Dolihite v. Videon,
The psychiatrists did have a duty to do intake evaluations, initial diagnoses and initial treatment plans and to provide psychiatric services when consulted. Thus it is incumbent upon us to examine how each psychiatrist performed when called upon to fulfill these duties.
2. Dr. Chester Jenkins
a. Facts Relevant to Dr. Jenkins
Dr. Jenkins was the psychiatrist assigned to David’s treatment team. Although he did not conduct David’s initial evaluation or render the initial diagnosis, Dr. Jenkins signed David’s treatment plan in late January, 1992. The plan listed suicidal ideations and gestures among David’s primary problems and recorded Dr. Maughon’s diagnosis of “conduct disorder solitary aggressive type.” David next came to the notice of Dr. Jenkins on March 8, when a Eufaula staff member notified him by phone that David had purposely cut his arm, stated that he “want[ed] to commit suicide,” and then purposefully removed the stitches from the self-inflicted wound. Over the phone Dr. Jenkins authorized the use of Vistaril, a tranquilizer, and soft restraints, if necessary. Dr. Jenkins did not follow up on the incident.
Then on March 18, after David stuck a pencil in the wound of March 8, Eufaula staff again contacted Dr. Jenkins about David. That day Dr. Nixon, the emergency room doctor who had also treated David on March 8, indicated emphatically in David’s medical records that David needed a psychiatric examination.
Although the scope of Dr. Jenkins’ March 19 “mental status examination” was not well-developed by the plaintiffs, it is apparent from Dr. Jenkins’ deposition that he formed the opinion that there was no evidence of clinical depression, delusions, or psychotic behavior. It was Dr. Jenkins’ opinion that David was exhibiting “non-suicidal self-destructive behavior,” i.e., behavior that was harmful but not life-threatening and behavior for which there was some explanation. The explanation was that such behavior was impulsive and related to things about which David was angry or frustrated — i.e., David was using such behavior in a manipulative fashion. Dr. Jenkins’ ultimate opinion was that there was not a need for psychotropic drugs and that David’s problem was behavioral.
The plaintiffs do not allege that Dr. Jenkins took part in the decision to take David off close observation on March 24 or that Dr. Jenkins had any contacts with David between the March 19 evaluation and David’s March 24 suicide attempt. The plaintiffs do allege that Dr. Jenkins failed to recognize David’s obvious signs of clinical depression and bipolar disorder and to diagnose him accordingly. They contend that David’s history of suicide threats and his family history of suicide, his increasing episodes of self-mutilation and mood swings should have led to that diagnosis. They assert that Dr. Jenkins should have prescribed intense and lengthy one-on-one therapy and antidepressant medication for David and that the failure to do so was a total departure from professional judgment.
The plaintiffs contend that Dr. Jenkins had the duty to make such a diagnosis and recommend such treatment when he was consulted on March 8 and then again when he was consulted on March 19. They also assert that Dr. Jenkins failed to exercise professional judgment when he did not see David on March 8. They argue that on March 19, when he did see David, he failed to do an in-depth evaluation or even an in-depth review of the record.
c. Expert Testimony Against Dr. Jenkins
The plaintiffs presented expert medical testimony. Our circuit has indicated that the testimony of medical experts can aid the court in determining whether qualified immunity is appropriate where allegations hinge upon the appropriateness of the actions of medical professionals, including mental health professionals. See Howell v. Evans,
The plaintiffs presented the affidavit of Dr. Abraham L. Halpern, a certified and practicing psychiatrist. His affidavit states that the psychiatrists’ treatment of David was “a total departure from professional judgment, practice or standards such that it cannot be said that their treatment of David was based on accepted professional judgment.” However, Dr. Halpern’s affidavit suffers from several flaws.
First, Dr. Halpern was not careful to discuss Dr. Maughon and Dr. Jenkins separately. Instead, Halpern often referred to
Dr. Halpern’s affidavit does refer to three incidents which he suggests indicated a need for more intensive intervention—the February 18 incident in which David was found talking to himself, the March 8 incident when David cut himself and removed the sutures, and the March 15 incident when David was bleeding on the walls and defecating on the floor of the time-out room. Dr. Halpern expressly labels only one of these incidents as psychotic behavior. He does not state why these incidents are so serious as to require medication or more intensive therapy nor does he cite authority for his eonclusory suggestion that any doctor would recognize these incidents as calling for more intrusive intervention. In the last analysis, Dr. Hal-pern’s affidavit is eonclusory and as such is of relatively little value in our interpretation of the facts of this ease. Thus, we are essentially left with little help from the expert in comparing the facts of this case with binding precedent which sets forth the contours of our law in this area.
This is not to say that Dr. Halpern’s conclusions are wrong. Rather it is to say that his affidavit does not aid us in our qualified immunity analysis. His affidavit is not the kind of tool which indicates with any specificity the degree to which the doctor here strayed from the realm of accepted professional judgment. The fact that Dr. Halpern used the phrase “total departure from professional judgment, practice or standards, such that it cannot be said that their treatment of David was based on accepted professional judgment of psychiatric practice” does not foreclose summary judgment when qualified immunity has been properly raised. The affidavit must help the court to discern whether the purported departure was so egregious that, in light of the reported cases, a reasonable professional would have recognized that his behavior amounted to a constitutional violation.
d. Application of Prior Case Law
Our analysis here will focus first on the plaintiffs’ assertion that Dr. Jenkins failed to adequately assess and treat David after the March 18 incident when David stuck a pencil in his March 8 self-inflicted wound. Dr. Jenkins evaluated David on March 19, the day following Dr. Nixon’s note in David’s record indicating the need for a psychiatric evaluation for anti-psychotie medication.
Relevant to our inquiry into Dr. Jenkins’ behavior on March 19 is the fact that Dr. Jenkins indicates that he reviewed David’s record prior to examining him. Thus, taking the facts in the light most favorable to the plaintiffs, Dr. Jenkins would have known of:
1. David’s previous suicidal threats and gestures;
2. David’s grandmother’s suicide;
4. David’s January 26, 1992, deep possibly self-inflicted puncture wound to his left wrist and his statement that he was going to “cut his arm off and kill himself’;
5. The February 2, 1992, incident when David wrote, “Oh, God I want to die, please take me or I’ll commit suicide, Death, Suicide are the facts of life.” on the security screen in his dormitory room;
6. The February 4, 1992, self-inflicted injury to the left wrist and the Progress Note of the same day indicating that David had been presenting as irrational;
7. The February 18, 1992, incident when David was talking to himself and telling a staff nurse that he was talking “to a friend who told him what to do”;
8. The February 24, 1992, incident when David performed some allegedly Satanic ritual in his room, inflicted further injury to left wrist, after which he told a mental health worker that the devil told him not to speak;
9. The March 8, 1992, incident when David cut his arm with a piece of metal in an apparently suicidal gesture, and after which he pulled out the stitches and refused new stitches;
10. The March 15, 1992, incident when David bled on the walls and defecated on the floor of the time out room; and
11. The March 18, 1992, incident when David re-injured his left wrist by sticking pencil in it and was again sent to the emergency room.
In addition to these facts, Dr. Jenkins would have known that Dr. Maughon had not identified a psychosis, that David’s suicidal threats and gesture problem were supposedly being addressed during his weekly therapy sessions, and that David’s family could not confirm that he had attempted suicide before coming to Eufaula. The record also indicates that Juris questioned whether David experienced genuine suicidal intent,
Having set forth the extent of Dr. Jenkins’ knowledge of David at the time of the challenged treatment, we now turn to this circuit’s prior cases to determine whether or not the departure in this case is as egregious as those cases, or more so. It is clear that Dr. Jenkins’ departure in this ease is not as egregious a departure as that of the psychiatrist in Greason v. Kemp,
Similarly, the instant facts are not as egregious as those presented in Rogers v. Evans,
A third ease, Waldrop v. Evans,
It is fair to say actions preceding David’s final injury in this case are not comparable to those in Waldrop; Waldrop’s gouging out his left eye clearly is a more serious incident than the most serious incident in this case prior to the March 24 hanging attempt, namely, the March 8 self-inflicted wound. Waldrop is also different from this case in that Waldrop had pled not guilty but mentally ill, had been diagnosed as manic depressive, and placed on lithium, an antidepressant drug, all before coming under the defendant’s care. We are satisfied that the defendant-psychiatrist’s inadequate response to the symptoms in Waldrop are not comparable to Dr. Jenkins’ actions in this case.
In summary, we conclude that the facts adduced by plaintiffs fail to show that Dr. Jenkins’ actions
3. Dr. Maughon
We next address plaintiffs contentions with respect to Dr. Maughon, the other psychiatrist under contract with Eufaula. Dr. Maughon’s involvement with David was limited to his initial evaluation of him on January 23, 1992, and his March 21 prescription of Vistaril over the telephone. Evaluating Dr. Maughon’s actions in light of the facts then known to him, it is clear that he had less information than Dr. Jenkins, and that his actions are less suspect than those of Dr. Jenkins.
With respect to the initial evaluation, plaintiffs’ expert, Dr. Halpern, notes that David had a family history of suicide, had made prior suicidal threats and attempts, and sug-
Dr. Maughon’s alleged misdiagnosis is less egregious than that of the psychiatrist in Greason and Waldrop. That psychiatrist knew that mental health professionals outside the prison system had previously diagnosed the inmates as suffering from serious psychiatric conditions and that those outside professionals had recommended that the inmates remain on previously prescribed psychiatric medications. Here the only previous diagnosis available to Dr. Maughon was the psychological evaluation from Baldwin County Mental Health Center, and it did not set forth any diagnosis but recommended only that David return to outpatient counseling and be placed in a residential program if his condition deteriorated. The evidence indicates that as of January 1992, when the initial intake was done, no other doctor or psychologist had suggested that David be evaluated for anti-psychotic medication.
After the initial assessment completed on January 23, Dr. Maughon was contacted only once more, on Saturday, March 21. At that time, David had been placed in seclusion after destroying property and threatening to cut himself with a piece of glass. He was beating his head on the wall and cursing loudly. Dr. Maughon was notified by telephone, and prescribed a tranquilizer over the telephone. In evaluating Dr. Maughon’s actions under the circumstances the following factors are relevant. There is no evidence that Dr. Maughon reviewed David’s record when he was called on the telephone on Saturday, March 21. Thus, we cannot assume that he had the more extensive knowledge which Dr. Jenkins had. Moreover, the incident on March 21 about which Dr. Mau-
We readily conclude that plaintiffs have failed to show that Dr. Maughon’s actions were such a departure from professional judgment that a reasonable professional in his shoes would have known that his actions violated David’s constitutional rights. Indeed, the case against Dr. Maughon’s is a fortiori less compelling than the case against Dr. Jenkins because Dr. Maughon is charged with less knowledge and because the particular incident which triggered his consultation was less serious than that which triggered Dr. Jenkins’ evaluation.
D. Bradley Mazick, PhD.
Dr. Mazick, a psychologist, was clinical director of Eufaula during David’s time there. The appellees allege that Dr. Mazick failed to exercise professional judgment both as a psychologist involved with David’s care and as clinical director of the facility by failing to review David’s record, failing to supervise Juris, failing to reform Eufaula’s seclusion and time out policies, and failing to take measures to prevent the alleged abuse at Eufaula. We will first address whether Dr. Mazick’s personal treatment of David violated David’s constitutional rights and then address whether Dr. Maziek’s alleged failure to discharge his administrative/supervisory duties amounted to constitutional violations.
1. Dr. Mazick’s Treatment of David
The appellees generally contended that Dr. Mazick departed from the most basic professional judgment in his treatment of David. They apparently base this allegation on his alleged failure as a general matter to supervise and to ensure for David the necessary and essential psychiatric treatment, and his failure to see David until two months after David was assessed and recognized as having made suicidal threats and gestures.
Dr. Mazick had only two personal contacts with David. The first was shortly after David injured his left wrist. Dr. Mazick secluded him sometime after that incident and asked him about his arm at that point. Then Dr. Mazick saw David briefly on March 24 when he had an informal conversation with him.
We readily conclude that plaintiffs have failed to show that a reasonable professional in Dr. Maziek’s shoes would have known that his actions violated David’s constitutional rights.
2. Dr. Mazick’s supervisory duties
The plaintiffs allege that Dr. Mazick’s failure to discharge his supervisory duties violated clearly established constitutional law and bore a causal relationship to David’s injury. It is true that in some situations, supervisors may be held liable for failing to train and supervise their subordinates adequately.
[Supervisory] liability under section 1983 “must be based on something more than a theory of respondeat superior. Supervisory liability occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.”
Cross v. Alabama Dep’t. of Mental Health & Mental Retardation,
The plaintiffs allege that Dr. Mazick failed to fulfill his supervisory responsibilities, including his duty to supervise Juris, his duty to review David’s clinical course on a regular basis given the fact that he “had knowledge of David’s suicidal condition” and to monitor the amount of treatment David was getting. The expert affidavit of Dr. Hamilton asserts that Dr. Mazick “should have” reviewed David’s clinical course on a regular basis and monitored Juris. However, the expert’s affidavit provides no support for his conclusory opinion. Neither the expert’s affidavit nor any other evidence adduced by plaintiffs supports their assumption that it was improper for Dr. Mazick to rely on Juris to bring relevant matters to his attention.
Significantly, Dr. Hamilton does not address the issue of the degree to which Dr. Mazick’s actions allegedly departed from accepted professional standards, and thus does not help plaintiffs discharge their heavy burden in that regard. Dr. Hamilton did suggest that in Alabama only psychiatrists and psychologists could diagnose mental illness. However, neither plaintiffs nor their expert indicate why, after a psychiatrist’s diagnosis was made, Dr. Mazick could not rely upon Juris to bring relevant matters to his attention.
None of our case law indicates that a supervisor’s failure to monitor an individual patient’s progress amounts to deliberate indifference or failure to exercise professional judgment. Thus, even if Dr. Mazick’s actions departed in some degree from accepted standards, plaintiffs have failed to carry their burden of establishing such an egregious departure that a reasonable professional in Dr. Mazick’s shoes would have known that he violated David’s constitutional rights. Dr. Maziek’s actions are not as egregious as the actions of Drs. Oliver and Duncan, the medical administrators who were denied qualified immunity in Greason. Both doctors were aware of the severe inadequacies of the institution, including the clearly inadequate number of professional staff. Both knew that the particular psychiatrist assigned to the inmate had an excessive burden. Both were aware that the psychiatrist had discontinued Grea-son’s medication. Both were aware of the previous incident, i.e., the Waldrop incident, in which an inmate had plucked out one of his eyes, severely injured the other eye, and
Nor are Dr. Maziek’s alleged supervisory failures comparable to those in George v. McIntosh-Wilson,
The appellees also assert that Dr. Maziek was responsible for the constitutional violations inherent in Eufaula’s seclusion practices, specifically the “inhuman conditions in building 112” as well as the manner in which time out and other forms of restrictions were used. The appellees allege that these practices violated the law set forth in Romeo. Their claim fails both factually and legally.
With respect to Building 112, appellees cite no evidence that specifically sets forth that the conditions were inhumane. Although the appellees allege that seclusion in Building 112 had no therapeutic effect, none of the documents they cite support that conclusion. Rather the documents cited by the appellees merely indicate that reforms were necessary with respect to Eufaula’s seclusion and restraint system. Nor have appellees presented expert testimony indicating that the restraints used in Building 112 constituted a failure to exercise professional judgment. Their argument with respect to timeout and other forms of restrictions fails for the same reasons.
Appellees claim also fails legally. A con-elusory allegation that the use of Bmlding 112’s seclusion facility violated Romeo is insufficient, absent precedent that more clearly sets forth what form of restraint is violative of Romeo. Although Romeo stated that the mentally retarded patient in a state institution did have a liberty interest in freedom from bodily restraint, id.,
Appellees also allege Dr. Maziek was responsible for not taking remedial actions to halt the beatings and abuse at Eufaula. Eleventh Circuit eases have held that administrators’ failure to abate violence and abuse may constitute deliberate indifference. See, e.g., Hale v. Tallapoosa County,
With respect to the allegations that abuse was rampant at Eufaula, the appellees have presented as evidence the affidavits of John Fowler and Billy Kirby as well as the testimony of Forte. The affidavit of Kirby did allege that Dr. Mazick knew about the beatings. Specifically, Kirby stated that he complained to Dr. Mazick that “all of [the residents] were being hit by staff members including ... David ... and lots of others.” However, we do not believe that this limited information would support a finding that violence and abuse were so rampant that failure to react would constitute a clearly-established constitutional violation. Plaintiffs also presented as evidence of abuse and violence the FY 1991-92 Advocacy Monitoring Report. That report, for the reasons discussed swpra at Part I, did not provide sufficient evidence to indicate that physical abuse was such that a jury could infer that Dr. Mazick knew that the abuse and violence were rampant. The report only concluded that incident investigations were inadequate; it only detailed a few allegations and none had been substantiated.
E. Anthony Dykes
Anthony Dykes was the director of the Eufaula Adolescent Center. Dykes was not trained in psychology, psychiatry, or social work, thus Dykes was not a mental health professional. Nevertheless, as an administrator or supervisor, he would be liable if he participated in the constitutional violation or if a causal connection existed between his actions and the constitutional deprivation. Cross v. Alabama Dep’t. of Mental Health & Mental Retardation,
First, appellees contend that Dykes failed to make sure David was free from unnecessary bodily restraints, i.e., that he allowed the practice of restraining patients for punitive rather than therapeutic purposes, and that he allowed the use of Building 112 for seclusion. For the reasons discussed above with respect to Dr. Mazick, this allegation must fail.
Second, appellees allege that Dykes failed to make sure that David did not experience abuse at Eufaula. Although, Kirby’s affidavit asserts that he told Dykes of the beatings children received at the hands of staff or other residents, this allegation must fail for the reasons set forth supra in our discussion of this allegation with respect to Dr. Mazick.
Third, appellees contend that Dykes violated David’s constitutional rights by failing to make sure conditions at Eufaula were safe, among other things, by failing to remove the bars from the dormitory closets. We first note that Dykes could reasonably rely on subordinates to ensure that a child who was at risk of doing harm to himself would be placed on close or continuous observation or that other precautionary measures might be taken. More importantly, we find no case law indicating that Dykes violated clearly established constitutional rights.
Fourth, appellees also contend that Dykes failed to make certain that David had adequate medical care, specifically, adequate psychiatric care or adequate individual treatment as would give him the realistic opportunity to be cured or to improve his medical condition. However, there is no indication that Dykes knew the details of David’s history of suicidal threats or gestures or that Dykes knew about the specific behaviors David exhibited while at Eufaula. Moreover, appellees’ complaints about Dykes in this regard rely on abstractions, which we readily conclude are insufficient. See Lassiter,
Fifth, appellees argue that Dykes took no steps to insure that Joint Commission on Accreditation of Health Organizations (“JCAHO”), accreditation was attained as required under the Wyatt Consent Decree as amended and approved in Wyatt v. Wallis,
Finally, appellees contend that Dykes and his subordinates exhibited such a degree of indifference to the policies and procedures that the staff could not have based their decisions on professional judgments embodied in the policies. See George v. McIntosh-Wilson,
F. Emmett Poundstone
Emmett Poundstone was ADMHMR Associate Commissioner for Mental Health. The Eufaula facility was within the scope of Poundstone’s responsibility. Poundstone was not a mental health professional. The plaintiffs claim that Poundstone failed to
As noted in the margin, the remaining claims by plaintiffs against Poundstone fail for reasons already discussed.
G. Royce King
Royce King was ADMHMR commissioner. He is not a mental health professional. The appellees allege that King and his subordinates exercised such a degree of indifference to compliance with the ADMHMR policies that they did not base their actual administrative decisions on professional judgment. However, the appellees do not indicate which particular policies King and his subordinates ignored. Nor do appel-lees identify the clearly-established constitutional rights implicated by such policies. Thus, we readily conclude that appellees have failed to demonstrate a violation of clearly established constitutional rights. See Lassiter,
V. CONCLUSION
For the'foregoing reasons, we affirm the district court’s denial of summary judgment as to Karen Juris, and we reverse the court’s denial of summary judgment as to the remaining appellants.
AFFIRMED IN PART and REVERSED IN PART.
Notes
. During the course of this litigation, Dr. Mau-ghon died. After this event, the plaintiffs amended their complaint substituting the name of Mary Fay Videon, the executrix of his estate for Dr. Maughon's name. For the sake of simplicity and brevity we will refer to Dr. Maughon with the understanding that our holding applies to the now-named defendant, Mary Fay Videon.
. Although Youngberg involved a civilly committed mentally retarded person, this circuit has interpreted the Youngberg holding to apply to involuntarily, civilly committed mental patients. See, e.g., Wooten v. Campbell,
. Neither party challenges our jurisdiction under the recent Supreme Court opinion, Johnson v. Jones, - U.S. -,
In Ratliff v. DeKalb County, Georgia,
Unlike Johnson and unlike Ratliff, the primary argument of each appealing public official in this case is that a reasonable public official could have believed that his or her actions were lawful, in light of clearly established law and the information possessed by each official. Anderson v. Creighton,
With respect to several subissues relating to several of the appellants, in order to evaluate the core qualified immunity issue presented by each appellant, we have identified precisely the relevant actions of the appellant and the relevant information possessed by each, of course, taking all reasonable inferences in favor of Dolihite. We are confident we have jurisdiction to do this. Cf. Anderson v. Romero,
With respect to several of the mental health professionals in the instant case, to determine what law is clearly established, we must undertake a fact-sensitive examination of controlling case law, particularly Greason v. Kemp,
Thus, the identification of the actions and knowledge of each public official is part and parcel of the core qualified immunity issue which is immediately appealable. This inquiry is distinguished from the factual issues found to be unre-viewable in Johnson and Ratliff in at least two respects. First, in both Johnson and Ratliff, the issue on appeal involved a predicate element of the underlying constitutional tort; by contrast, in this case, the issue we address is the core qualified immunity issue — i.e., whether a reasonable public official could have believed that his or her actions were lawful in light of clearly established law and the information possessed. Second, in both Johnson and Ratliff, the challenge on appeal involved the sufficiency of the evidence to create a genuine issue of fact; by contrast, in this case each appealing public official raises the core qualified immunity issue identified above.
Our conclusion that we have jurisdiction to identify the precise actions and the precise knowledge of each appellant is supported by the recent Eighth Circuit decision in Reece v. Groose,
Even if we are incorrect in our conclusion that the identification of the precise acts and knowledge of each appealing public official is part and
Ordinarily, we might simply "take as given” the district court’s identification of each appellant’s actions and knowledge. See Johnson,U.S. at -,
. At the time of the adjudication David had no juvenile convictions or history of drug or alcohol abuse. But by March he had been adjudged delinquent because he drew a knife on someone at the Boys Home in Robertsdale where he was sent while waiting to go to Eufaula. As a result of this incident he was again sent home. When he violated his probation by misbehaving at school, he was sent to the Hit Program, a De
. The district court opinion indicates he was admitted on this date in 1991, but this appears to have been a typographical error.
. According to the record, appellant Mazick, the Eufaula clinical director, did not see David at this point.
. David told Juris during her initial interview with him that he had attempted suicide ten times, that he made his first gesture in the fourth grade. He also described other attempts which had occurred within two years of his arrival at Eufaula. However, Juris appears to have been skeptical about whether these attempts ever occurred or at least the nature of the attempts. “There is some question as to the actual pervasiveness of his [suicidal] thoughts and whether or not they appear to be more manipulative in nature or the result of significant clinical depression.” At least one suicide threat was documented in his Baldwin County Mental Health Center Evaluation. David threatened suicide in March of 1991 in a poem he gave to a former girlfriend.
. Evidence in the record below indicates that David’s grandmother committed suicide; however, the portion of David's Eufaula record which discusses the incident gives the impression that David’s father's grandmother committed suicide.
. "He denies hallucinations at this time; however, in a very detached manner he describes looking in the mirror and seeing no reflection, seeing hands beckoning him and seeing the ghost of someone killed in a car wreck.”
. The nurse apparently refused to give him medication for pain. In his Progress Notes Juris wrote, “He claimed to be upset because Nursing Services did not provide treatment to a small puncture on his hand.” In her suicide assessment of David conducted the following day, Juris wrote: "I interviewed him on 1/27/92 and he appeared nondepressed and denied all suicidal ideation. He was verbal and animated. David did admit to being frustrated 1/26/92 10:30 pm and reported himself to having only a fleeting thought of suicide.” She then moved him from continuous observation to close observation status and indicated that he was to be checked every hour.
. In Juris' affidavit, she said that she performed a suicidal risk assessment and that David denied suicidal intent; however, there is no suicide assessment form in record with respect to this incident.
. The affidavits of John Fowler and Billy Kirby, two of David’s fellow Eufaula residents, also indicate that David was placed in seclusion for removing his sutures. His records indicate that he was secluded on March 9, but for failure to follow staff instructions.
This is not the only incident for which David was secluded. Before his injury, David was sent to seclusion for a total of about 14 hours. It was apparently common practice at Eufaula to place a disruptive child in various forms of confinement, the milder version being dorm restriction which apparently meant that a child could not leave his dormitory or his dorm room except to attend classes or meals. Staff members could also place children in "time-out" which required children be confined in a particular room with a staff member checking on them every fifteen minutes. During his time at Eufaula, David was kept in time-out for approximately 70 hours. Seclusion was a more serious confinement, an extreme measure. Residents at Eufaula were apparently secluded individually in a building separate from the dormitories in one of three small rooms resemblant of bare jail cells with concrete floors, no furniture and ño heat.
.Dr. Nixon noted in David's file that the March 18 incident was the third episode of self-mutilation which had come to her attention (including the removal of his March 8 stitches).
. The social worker on duty stated in David’s Progress Notes that David was secluded for failing to follow staff's directions, threatening to do harm to himself, inciting a racial riot, and causing disruption to therapeutic environment.
. David had tom his closet door off its hinges and had knocked a hole in it. David told the worker that he had mood swings and felt like destroying something.
. The seclusion order indicated that the reasons for seclusion were David’s physical aggression toward staff and his attempt to pull down a light fixture out of the ceiling. Samuel Denson, another mental health worker, rather than Allen Forte filled out the seclusion form.
.Juris did write in David's Progress Notes of March 24 that he “continue[d] to resort to self-injurious behavior when angered or frustrated," but this might have referred to his behavior of March 19 (sticking the pencil in his wrist wound) or his behavior of March 21 (threatening to cut himself).
. According to Mazick’s affidavit, David expressed an interest in speaking with Mazick in a seemingly chance encounter which occurred while David was in the hall outside Juris’ office.
. He also stated that once a staff member threw Billy Kirby, another resident, down the stairs.
. The report did recount the complaints behind some of the investigations. One resident reported being kicked in the ribs by another resident; another resident reported being hit in the face by a staff member; a third resident reported that a staff member had threatened to beat him up; a fourth investigation revealed that a resident might have been secluded as a means of punishment; and a fifth resident requested a referral to the nurse for treatment of an injury but was not seen until the following afternoon. Some investigation accounts were included as attachments to the Advocacy Report. In one, a resident reported a mental health worker hit him in his mouth; another indicated that a staff member had been cursing at the residents; a third concerned the incident in which a resident reported being kicked in the ribs by another resident; and, a fourth described an incident in which a resident reported a bruise on his right eye.
. The first step of the analysis is to determine whether the officials were acting within their discretionary authority. Sammons v. Taylor, 96
. This holding does not require that public officials “ he creative or imaginative in drawing analogies from previously decided cases'" in contravention to Lassiter. Lassiter, 28 F.3d at 1150. The conclusion is set forth in the plain language of Romeo and requires no analogies.
. Moreover, in Romeo, the Supreme Court did not decide whether the facts of that case would amount to a violation of the plaintiff’s due process rights. Rather, the Supreme Court remanded the case for the lower courts to decide.
. The record indicates that David's therapy did not occur as often as prescribed.
. There is a factual dispute as to whether or not David attempted to hang himself on March 22, and also with respect to Juris' knowledge thereof. In the summary judgment posture of this case, we take the reasonable factual inferences in favor of the plaintiffs.
. The district court’s opinion is not clear, but it may have thought that McBride knew of the March 22 hanging attempt.
. The fact that he did take part in putting David on dorm restriction does not indicate that he took part in the decision to take David off of close observation status. There is no indication in the evidence presented and plaintiffs do not allege that dorm restriction meant that a resident was automatically taken off close observation.
. The actions of Calvin Brown, the mental health team leader in Greason, can be distinguished from McBride's actions here. Brown took no measures to protect Greason or to seek appropriate help for Greason. The evidence in the record indicates that, as far as McBride knew, measures were being taken to protect David from himself, i.e., David was on close observation status and was being monitored every fifteen minutes.
. For instance, Dr. Abraham Halpem, the plaintiffs’ psychiatric expert, concludes that David should have received psychiatric medication and more intensive therapy. Both options were apparently available at Eufaula.
. Although both Drs. Maughon and Jenkins prescribed Vistaril, a tranquilizer, for David, the plaintiffs do not contend that that prescription triggered the duty to follow-up.
. She wrote: “MUST be evaluated by Psychiatrist for antipsychotic medication....”
. Apparently, both the plaintiffs and Dr. Halpern in his expert affidavit are confused about which psychiatrist was involved in the March 19 and March 21 incidents. The defendants note that Dr. Jenkins, not Dr. Maughon, evaluated David on March 19 and Dr. Maughon, not Dr. Jenkins, prescribed the Vistaril tranquilizer on March 21.
. However, an expert opinion which is merely conclusory, even if couched in the language of the relevant legal standard, will be of little assistance to a court. See, e.g., Rogers v. Evans,
. Rather, the contract required Drs. Maughon and Jenkins to conduct the initial evaluation, to prescribe medication, to follow up on patients receiving medication, to be available for consultation, and to consult on an as-needed basis.
. There is another error in Dr. Halpem’s affidavit—as part of his consideration of the March 19 events, Dr. Halpem assumes that the psychiatrist should have called the emergency room doctor. There is no substantiation for this claim in his affidavit or in relevant case law.
. For instance, at one point she considered his threats to be for “shock value” and at another she questioned "the actual pervasiveness of his thoughts and whether or not they appear to be more manipulative in nature.” In the first suicide assessment, Juris noted that David’s family did not have knowledge of David’s past suicide attempts and that David’s self-reported past gestures could not be confirmed.
. This case did not address the qualified immunity issue. Nevertheless, it sets forth binding precedent and as such serves to elucidate the contours of the law in this area.
. If Dr. Jenkins' actions on March 19, at which point he was privy to several more incidents of David's self-destructive and possibly psychotic behavior, did not violate clearly established constitutional rights, it follows that his alleged failure to take action on March 8 did not violate clearly established constitutional law.
. The social history conducted by Juris simply stated that David had had suicidal thoughts and gestures within the two years before being admitted to Eufaula. His Baldwin County report conducted in August 1991 did indicate that at least one threat occurred in March 1991.
. For example, Juris wrote on March 2 that David continued to enjoy the "shock value” of talking about suicide. The record seems to indicate that Juris questioned whether David had ever actually attempted suicide. She noted in the January 27, 1992, suicide assessment form that David's family had no knowledge of David's past attempts and that David’s self-reported gestures could not be confirmed. In the same report she described his suicidal thoughts as without genuine intent.
.Dr. Nixon, not a psychiatrist, referred David for evaluation almost two months after Dr. Mau-ghon’s initial evaluation of David.
. The notes about this incident in David's record indicate only that “Dr. Maughon was notified about this resident beating and banging head on walls and cursing and totally out of control—He said give Vistaril 50 mg in stat....”
. In his deposition, Dr. Mazick testified that he saw David in the hallway and that David requested to speak with him.
. Mazick noted that David was due to be off close observation status because he had been free of self-injurious behavior for several days. However, had he looked at David’s record, he would have realized that there were two self-injurious incidents over the weekend. Apparently, he was inferring that such was the case from David’s comments and from Juris’ decision to take David off close observation.
.He did indicate after the fact that he told David that he saw no reason David should not be taken off close observation, but the record does not show nor do the plaintiffs contend that he took part in that decision.
. In Romeo, the patient was physically restrained during portions of each day through the use of soft restraints which apparently bound the arms only.
. A jury might infer that Dr. Mazick had learned of the plight of the resident discussed in Forte’s affidavit. Forte testified that one resident had to be taken to the hospital twice to be treated for injuries incurred when other residents sexually abused him. However, even assuming Dr. Mazick knew of these two incidents also, the totality of what he knew does not create an inference that the episodes of abuse at Eufaula rose to the level discussed in the text.
. In Belcher v. City of Foley,
. In that case, Kemp, the warden of the facility where an inmate committed suicide, knew of particular inadequacies in his facility but did nothing to correct them and knew a similar incident had occurred previously but did nothing to investigate that previous incident or prevent it from happening again. Greason,
. See Clark v. Evans,
.Although it is alleged that Eufaula’s policy was violated when David was admitted in contravention of the policy against admitting actively suicidal patients, it is not alleged that Dykes took part in that decision or that he could be directly implicated in that decision.
. In Greason, numerous failings combined to persuade the court to deny qualified immunity to Dr. Duncan, who held the state-wide position of Director of Mental Health for the Georgia Department of Corrections. Dr. Duncan was aware of the previous and very similar Waldrop incident, was aware that the same psychiatrist primarily responsible for the Waldrop incident was the only source of psychiatric care for Greason, was aware that he could not adequately treat all of the inmates requiring mental health care, was aware that the particular institution made no provision at all for mental health treatment plans, and in general was aware of the conditions at the institution that constituted grossly inadequate mental health care. Nevertheless, Dr. Duncan failed to take any remedial action. Amongst the claims of Dr. Duncan's deficiencies was a claim superficially similar to, but actually much different from the instant claim—i.e., that Dr. Duncan knew that the institution had no policies or procedures designed to help the nonprofessional prison staff and guards recognize suicidal tendencies and prevent suicide attempts. Not only was that alleged deficiency merely one of a number of more serious deficiencies, the instant claim against Poundstone is not that he knew that Eufaula’s provisions for suicide assessment were wholly inadequate, but rather that he merely failed to ensure that there were policies requiring more training. We readily conclude that the Greason precedent is wholly inapposite.
. The plaintiffs contend that Poundstone is not entitled to summary judgment because (1) he failed to take measures to stop the beating and abuse at Eufaula, (2) he failed to change the allegedly unconstitutional seclusion and time-out policies, and (3) he failed to ensure that Eufaula acquired JCAHO accreditation. The first and second allegations fail for the reasons set forth in Section IV.D. in our discussion of this claim with respect to Bradley Mazick. The third claim fails for the reasons set forth in Section IV.E. in our discussion of this claim with respect to Anthony Dykes.
Concurrence Opinion
dissenting in part and concurring in the result in part:
A great deal of today’s opinion is right. I cannot concur, however, in the decision on Karen Juris.
In my judgment, when Ms. Juris in 1992 acted or failed to act, it was not already clearly established as a matter of law that the rights, under the fourteenth amendment’s due process clause, of mental patients
The difference between a prison and some other kind of institution and the difference between the eighth amendment and the fourteenth amendment’s due process clause are enough, at least, to cloud the question. To apply Greason outside of a prison is not to follow Greason, but to extend it. I do not believe that nonlawyers must foresee such extensions or forfeit their immunity. To me, this practice flies in the face of the idea that qualified immunity protects against personal liability unless the defendant’s acts violated clearly established pre-existing law.
I know that the Supreme Court in Romeo wrote among other things that persons civilly committed are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” But those words are not the holding of Romeo. They explain the Romeo decision in part: they explain why the “deliberate indifference” standard used for prisons was not adopted for mental institutions. But Romeo does not hold that every act that violates the eighth amendment rights of a prisoner will doubtlessly violate the due process rights of those involuntarily civilly committed to state institutions. In my view, this idea is not clearly established as a matter of law now and was not so established in 1992.
I do not say that the Supreme Court’s words that I have quoted are totally without significance; they have some value as predictors. But, I do say the words do not establish law, in themselves. And, by the way, this Circuit has also never held that the due process rights of mental patients always, at least, equal the eighth amendment rights of prisoners. Therefore, today’s court’s heavy reliance on Greason — an eighth amendment decision — as the case that in 1992 had already clearly established rights outside of the eighth amendment’s prison context seems too shaky. I cannot go along.
For me, Greason, in the light of the words I have quoted from Romeo, does suggest that courts might ultimately decide that the law requires mental health workers outside of prisons to follow or to exceed the eighth amendment guidelines. But, in Lassiter, we said for precedent to suggest something about the applicable law was just not enough.
We said the “pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Lassiter v. Alabama A & M University, Bd. of Trustees,
In 1992, Greason did not (and in my view, as a matter of law, could not) truly dictate the essential conclusion for Karen Juris and those like her who were working outside of prisons. I cannot hold this social worker to a clearer understanding of the law — particularly of the precedential authority of Greason— than I have.
I dissent from the result for Karen Juris, but concur in the result otherwise.