Lead Opinion
This аppeal requires us to decide whether a county and the healthcare provider at its jail are liable for the death of pretrial detainee Tracy Lee Veira, 42 U.S.C. § 1983, where the record does not establish a pattern of similar incidents at the jail, knowledge by county policymakers of
I. BACKGROUND
The facts of this case are undeniably tragic. On September 9, 2009, Veira turned herself in at the Volusia Cоunty Jail, after she violated her probation for convictions of driving with a canceled, suspended, or revoked license and fleeing law enforcement officers. Corizon was the contract healthcare provider at the jail. Before her imprisonment, Veira was prescribed Oxy-codone and Xanax by her physician to treat symptoms of chronic back pain. These prescribed medications were discontinued after Veira’s booking because Oxy-codone and Xanax may not be distributed to inmates.
Three days after she entered the jail, Veira went to the medical clinic and expressed that she had been vomiting in her cell. A nurse identified signs of opiate withdrawal and called the nurse practitioner. Without examining Veira, a doctor gave “Physician’s Orders” over the phone that prescribed various medications and instructed that Veira be placed on a clear liquid diet for three days. The medical staff also began a medical protocol to monitor Veira’s withdrawal symptoms and moved Veira from the general prison population to medical segregation, where she was placed on medical watch. Jail policy required that correctiоns officers observe an inmate on medical watch “in time intervals not to exceed every 15 minutes and document[] as such” on a watch sheet.
In the “early afternoon” on September 14, two days after Veira was placed on the medical protocol, she called her friend Crystal Wharton. She told Wharton that she felt sicker than ever before and had submitted multiple requests for mental health services but that no nurse had come to see her. Veira asked Wharton to call the medical clinic for her, which Wharton did. The medical staff saw Veira at 3:45 p.m. that day.
Veira went to the nurses’ station again the next day, September 15, at around 2:30 p.m. According to one nurse, Nurse Jones, Veira “was slumped over lying across 3 chairs, lethargic, diaphoretic, with pale skin, arms and legs twitching, [and] exhibiting slurred speech.” Jones was concerned. She informed the head nurse that Veira needed immediate medical attention and looked like she needed to go to the
That night, Veira “moaned and cried out loudly in pain ,,., asking for help,” but the guards ignored her pleas and “talk[ed] among themselves in a negative fashion about ‘people cornin’ in here on drugs.” The watch sheet for that evening and the following morning did not “show[] any hint of [a] problem.” But at 9:45 a.m., an officer found Veira unconscious in her cell. Veira was “in full rigor mortis and with moderate liver mortis.” Her body was covered in “a dark green bilious vomit,” and a “cup next to her head was filled to the brim with the same fluid.” According to the watch sheet for that time period, Veira had been observed every fifteen minutes. The majority of the notations stated that Veira was observed lying on her bunk breathing, and none of them marked anything out of the ordinary.
Two officers admitted that they made incorrect entries on the watch sheet in the hour or two before Veira’s death. One of the officers stated that she wrote “on bunk breathing” on the watch sheet incorrectly for the 8:45 a.m, and 9:00 a.m. entries. The officer said that she actually saw Veira sitting on the toilet at 8:45 a.m. and standing at her cell door at 9:00 a.m. The other officer, a sergeant, wrote on the watch sheet that she spoke with Veira at 8:33 a.m., but later stated that she did not speak with her and instead saw her on her bed, apparently sleeping. One of Denham’s medical experts disputed these statements. He stated that “purported observations of ... Veira by [ ] staff that she was standing at her door less than an hour before she was found unresponsive, or sitting on the toilet just over an hour before she was found, are preposterous?” because, based on the condition of the body when it was found, Veira had likely been dead for at least one to two hours before she was found at 9:54 a.m.
Additionally, the officers often recorded watches that never occurred, and the supervisors would help the officers falsify the sheets. According to Dr. Marilyn Ford, the Corrections Director for the Volusia County Division of Corrections, employee records from 2005 through the date of Veira's death in 2009 reveal that, excluding the reprimands associated with Vеira’s death, there were “eight other instances where corrections officers either failed to properly maintain watch over inmates or failed to properly document their activities.” Dr. Ford explained that “[i]n every case, employees were disciplined.”
At the autopsy, the medical examiner discovered that Veira had lost at least 19 pounds over the six-and-a-half days she was imprisoned. He listed “withdrawal from opiate abuse” as a significant condition of Veira’s cause of death. Dr. Kris Sperry, one of Denham’s medical experts, stated that, in his opinion, “Veira died of the complications of severe vomiting and dehydration which caused her to vomit, aspirate that vomit, develop aspiration pneumonia, and die.” Dr. Sperry stated
An inmate was discovered dead at the jail at least one other time. A former officer reported that he “recall[ed] one instance prior to but similar to the Veira ease in which [he] and [another officer] were the first to respond to an inmate classified close watch and housed in the former medical clinic who had been dead so long when [they] discovered him that he [was] fully rigid and his bodily fluids were soaking through the tissue of his back into the mattress.”
Denham, as personal representative for Veira’s estate, filed a complaint against Volusia County and Corizon, alleging that Volusia County and Corizon violated Veira’s Fourteenth Amendment rights by acting with deliberate indifference to Veira’s serious medical needs, 42 U.S.C. § 1988. Volusia County and Corizon filed motions for summary judgment, which the district court granted. Specifically, the district court determined that Denham failed to produce evidence that “Volusia County’s policymakers or the policymakers in its department of corrections had actual or constructive knowledge of the constitutionally-violative practice” and determined that Denham failed to prove deliberate indifference under a theory of liability for failure to train because she did not establish a widespread pattern of similar constitutional violations by untrained employees or establish that the need for more or different training was “obvious.” The district court also determined that, although a rational jury could determine that Corizon had a custom of failing to complete intake paperwork accurately, Denham failed “to produce affirmative evidence showing a direct causal link between this custom and Veira’s death.” And to the extent any of Denham’s arguments could be construed as an allegation of a custom of providing inadequate medical care, the district court stated that the record refuted this assertion by proving that Corizon’s staff interacted with Veira multiple times every day. Finally, to the extent Denham alleged in her complaint that Veira’s death may have been caused by a policy or custom of un-derstaffing the jail, the district сourt determined that Denham failed to produce any evidence of understaffing and instead relied on conclusory allusions to that effect.
II. STANDARD OF REVIEW
“This Court reviews de novo summary judgment rulings and draws all inferences and reviews all evidence in the light most favorable to the non-moving party.” Moton v. Cowart,
Moreover, if the nonmoving party fails to make a sufficient showing to establish the existence of an essential element to
III. DISCUSSION
Section 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Rehberg v. Paulk,
First, Denham must establish that Veira’s constitutional rights were violated. McDowell v. Brown,
Second, Denham must show “that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right.” McDowell,
Third, Denham must establish “that the policy or custom caused the violation.” McDowell,
Denham asserts five theories of liability, and each of these theories fails. First, she argues that Volusia County and Corizon had policies of failing to train the guards at the Volusia County jail, but she fails to present evidence that proves that the entities had this policy. This argument fails on the second factor. Second, she argues that Volusia County had a custom of falsifying records to cover up the officer’s failure to perform watches every fifteen minutes as required, but she fails to establish that any policymaker at Volusia County knew about this practice. This argument also fails on the second factor. Third, she argues that Corizon had a custom of failing to perform the intake procedures correctly, but she does not explain how this custom caused Veira’s death. This argument fails on the third factor. Fourth, Denham argues that Corizon had a custom of providing inadequate medical care, but, at most, she submitted evidence suggesting that Corizon provided inadequate medical care on only a single prior occasion. This argument fails on the second factor. Fifth, Denham argues that Volusia County had a policy or custom of understaffing, but she fаils to establish that a policymaker’s budget decision was highly likely to cause Veira’s death. This argument fails on the third factor.
A. Denham, Did Not Produce Sufficient Evidence to Establish that Volusia County and Corizon Had Policies of Failing to Train the Officers at the Jail.
Denham argues that corrections officers in the medical segregation unit at the jail “performed critical medical duties with respect to [the] most seriously ill inmates” but were not trained to provide nonemergency medical services. She asserts that this failure to train constitutes a custom or policy of deliberate indifference. A municipality may be liable for failing to train its employees if “such inadequate training can justifiably be said to represent ‘city policy.’” Canton,
A municipality might be on notice of a need to train or supervise in a particular area if “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need” or if the employees of the municipality “in exercising their discretion, so оften violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers.” Canton,
Denham failed to produce sufficient evidence to prove that it was obvious that the correctional officers at the Volusia County jail needed “more or different” training. This standard is difficult to meet. The Supreme Court has never determined that the need for “more or different” training was obvious. It has “given only a hypothetical example of a need to train being ‘so obvious? without prior constitutional violations: the use of deadly force where firearms are provided to police officers.” Gold,
Because Denham failed to identify a pattern of similar constitutional violations, she also has not established that the Volusia County officers so often violate constitutional rights that the need for further non-emergency medical-services training must have been plainly obvious to the Volusia County policymakers. See Connick,
B. Denham Did Not Produce Sufficient Evidence to Establish that Vo-lusia County or Corizon Had a Custom that Caused Veira’s Death.
Denham also argues that Volusia County and Corizon had customs that constitute policies of deliberate indifference. “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Brown,
Denham argues that Volusia County had a custom of recording watches that were not performed, but fails to produce evidence that this conduct is properly attributable to the municipality. Denham cites the affidavit of a former officer that states that the practice of failing to perform watches and falsifying the watch sheets was “so pervasive” that he “personally [found] it inconceivable that they were not known to the top administrators.” But a muniсipality may not be held liable for the acts of its employees unless the municipality sanctioned or ordered the acts. And the record establishes that to the knowledge of Dr. Ford, a policymaker for Volusia County, whenever an officer failed to perform a watch or falsified a record, the officer was disciplined. On this record, there is no evidence that the county in any way sanctioned the behavior of the officers who violated the watch policy because to the extent the policymakers knew about this practice, the policymakers thought the officers were punished. The record establishes that officers routinely falsified records and the supervisors assisted in this practice, but does not establish that any policymaker knew about this practice and did nothing. As such, Denham has failed to establish a custom that is properly attributable to the municipality.
Denham also argues that Corizon had a custom of failing to perform intakes correctly and that this failure prevented Cori-zon from diagnosing Veira for three days, but Denham has not established that this practice caused Veira’s death. The medical staff diagnosed Veira as suffering from opiate withdrawal and placed her on a treatment protocol three days after she entered the jail. But nothing in the record suggests that Veira died because of Cori-zon’s failure to diagnose Veira sooner.
And to the extent- Denham argues that ' Corizon had a custom of providing inadequate medical care, she failed to establish that Corizon provided inadequate medical care to othеr inmates. Denham established that, on one other occasion, an inmate on medical watch was found dead and had been dead for a long time. But she produces no evidence tying this death to any action of Corizon. Her claim that Corizon had a custom of providing inadequate medical care rests only on Veira’s experiences, which are, at most, proof of “ ‘a single incident of unconstitutional activity.’” Craig,
Finally, Denham also seeks to hold Vo-lusia County liable for Veira’s death based on an alleged policy or custom of under-staffing at the jail. She relies on the declarations of two former Volusia County correctional officers and a licensed practical nurse at the jail to support her assertion. These declarations, however, are insufficient to establish Volusia County’s liability in this case. To survive summary judgment, Denhаm must produce sufficient evidence that a policymaker’s specific budget decision was highly likely, and not simply more likely, to inflict a particular injury. See Brown,
The standard for holding a municipality liable under section 1983 is high. A plaintiff must prove that a federal right was violated, that the municipality had a policy of deliberate indifference, and that this policy caused the violation of the plaintiffs federal right. Here, even assuming that the actions of Volusia County and Corizon violated Veira’s constitutional rights, Den-ham fails to establish the facts necessary to survive summary judgment. She has not established that either Volusia County or Corizon had policies that caused Veira’s death. Becausе she has failed to make a showing sufficient to establish the existence of elements essential to her case,
IV. CONCLUSION
We AFFIRM the entry of summary judgment in favor of Corizon and Volusia County.
Notes
. The abbreviations are not defined in the record or by the parties.
Concurrence Opinion
concurring:
I concur in the panel’s decision that the district court’s grant of summary judgment to both Corizon Health and Volusia County must be affirmed on the record in this case. I write separately, however, to note that, as to the County, in the eight prior instances where corrections officers either failed to properly maintain wаtch over inmates or failed to properly document the inmates’ activities, the corrections officers were disciplined by only their immediate supervisors and not by a policymaker for the County. Nor does the record in this case contain any evidence that any County policymaker was ever aware that corrections officers regularly and often with the encouragement of their immediate supervisors, falsified inmate watch records. Had such evidence of a County policymaker’s knowledge of this practice existed, the result here would have been different because sufficient evidence exists to create a material issue of fact as to whether the practice of falsifying inmate watch records was so widespread as to constitute a custom or policy of Volusia County.
What happened here should not happen again. Counsel for Volusia County conceded during oral argument that the facts adduced in this case have since been “looked at” by County policymakers and would serve as “pretty firm evidence” of notice in any future litigation. So I would expect that the County will immediately take all necessary remedial actions to correct the systemic failures identified in this tragic and preventable case.