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Estate of Anderson v. Wisconsin Municipal Mutual Insurance Co.

United States District Court, E.D. Wisconsin

August 24, 2016



          William C. Griesbach, Chief Judge

         This is an action for damages arising out of the alleged failure to provide appropriate mental health care and treatment to Joshua D. Anderson during his confinement at the Brown County Jail. Anderson was confined in the jail from November 1, 2013, when he was placed in the jail on a probation hold, to January 20, 2014, when he was transferred to the Brown County Treatment Center. He died in a nursing home less than a year later. Anderson's Estate and minor child (Plaintiffs) filed this action pursuant to 42 U.S.C. § 1983 against Brown County, which owns and operates the jail; the County's insurer, Wisconsin Municipal Insurance Company; Lieutenant Phillip Steffen, who was a jail supervisor; Kristin Nutter, Anderson's probation officer; and Jeremy Donath, her supervisor; Family Services of Northeast Wisconsin, which contracts with the County to provide certain mental health services; and Tana Koss, a supervisor at Family Services. Plaintiffs claim Anderson was subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, § 6 of the Wisconsin Constitution. Plaintiffs also assert claims of false imprisonment in violation of Anderson's rights under the Fourth Amendment, negligence and various statutory violations. In a previous decision, the court dismissed the claims against Anderson's probation officer and her supervisor. The case now comes before the Court on the remaining defendants' motions for summary judgment. (ECF Nos. 47, 67.) For the reasons that follow, summary judgment will be granted in favor of Family Services, Koss, and Lt. Steffen. The County's motion will be denied.


         Mental health care and treatment in Wisconsin is governed by Chapter 51 of the Wisconsin Statutes. Chapter 51 authorizes counties to establish hospitals or facilities for the detention and care of mentally ill persons, alcoholics and drug addicts. Wis.Stat. 51.09. Mentally ill individuals in need of treatment may consent to voluntary admission to such facilities, subject to several statutory safeguards. Id. § 51.10. Alternatively, individuals who are mentally ill and dangerous to themselves or others may be involuntarily committed to such facilities for care and treatment, in both non-emergency and emergency situations. Id. § 51.20. In non-emergency situations, proceedings to involuntarily commit a person for mental health care and treatment are initiated when three adults, at least one of whom has knowledge of the subject's dangerous conduct, file a signed petition with the court. Id. § 51.20(1)(b). The court must review the petition within 24 hours of filing. Id. § 51.20(2)(a). If the court determines that the person is mentally ill and eligible for commitment based on his recent conduct, it issues an order of detention. Id. In emergency situations, a law enforcement officer may take a person into custody if the officer has cause to believe that the person is mentally ill and poses a substantial risk of physical harm to himself or others. Id. § 51.15(1)(ag). But even where a law enforcement officer has cause to believe that a person meets the requirements of the statute for emergency detention, the officer can only transport the person to a facility if the county department of community programs approves the need for detention and for evaluation, diagnosis and treatment. Id. § 51.15(2). If a jail cannot provide the necessary mental health care and treatment for inmates, the statute authorizes transfer of the inmate to state mental health facilities. Id. § 51.37.

         Family Services provides various mental health related services to Brown County under a contract with the Brown County Department of Human Services. (ECF No. 81-1.) The services Family Services performs under its contract with the County include making referrals for mental health services and providing counseling and support for people in crisis and/or contemplating suicide. Family Services offers short-term counseling for people of all ages throughout Brown and other counties 24 hours a day, 7 days a week. Under its agreement with Brown County, Family Services also performs the evaluations required for emergency detentions under § 51.15. Without Family Services' approval, law enforcement may not transport an individual to a mental health treatment facility for emergency detention.

         At all times relevant to the facts of this case, Brown County contracted with Health Professionals, Ltd., (HPL) and/or Correctional Healthcare Companies (CHC) to meet the health care needs, including mental health care needs, of the inmates and detainees of the Brown County Jail. The HPL contract provided for medical and mental health services, including 56 hours per week of registered nursing services, 85 hours per week of licensed practical nursing services, 4 hours per week of physician services, 3 hours per week of psychiatric services, 40 hours per week of director of nursing services, 40 hours per week of medical records clerical services, 4 hours every other week of dentist services, and 4 hours every other week of dental assistant services. In addition to these services, the contract provided for on-call physician and/or nursing services 24 hours per day, 7 days a week. (ECF No. 86 ¶ 11.)

         In May 2013, Joshua Anderson was admitted to the Brown County Mental Health Treatment Center (BCTC) after his mother called the police stating Anderson threatened to cut himself with a box cutter. Police disarmed Anderson and, with the approval of Family Services, transported him to BCTC pursuant to Wis.Stat. § 51.15 on an emergency detention. During the transport, police also confiscated some marijuana Anderson admitted using, which formed the basis of possession of THC and possession of drug paraphernalia charges issued by the Brown County District Attorney in July. On August 26, 2013, Anderson appeared in court without counsel and entered a guilty plea to the misdemeanor possession of marijuana charge. Sentence was withheld, and Anderson was placed on one (1) year probation and ordered to complete ten (10) hours of community service. In October, Anderson was again admitted to the BCTC on an emergency detention, again approved by Family Services, after police determined he was a danger to himself. This time, his detention lasted four days.

         At the same time, likely due to his mental condition, Anderson did not comply with the conditions of his probation. More specifically, it appears he failed to report to his agent as directed. Anderson was released from the BCTC on October 15, 2013. On October 17, 2013, his probation agent issued an apprehension request for him. Anderson was taken into custody on November 1, 2013, and placed in the Brown County Jail.

         During Anderson's booking, he exhibited strange and unresponsive behavior, resulting in his placement in special housing. Viewing the evidence in the light most favorable to Plaintiffs, it was clear as early as November 21, 2013, if not earlier, that the jail was unable to meet Anderson's mental health needs. (ECF No. 60 ¶ 3.) Michelle Dahlke, the HPL mental health professional, noted that Anderson had been virtually non-verbal and unresponsive almost from the first time she attempted to see him on November 4, 2013. She repeatedly wrote N/A [not applicable] in the section of her reports for assessment and plan because Anderson was essentially non-responsive. (ECF No. 73-10.) By November 21, she documented that Anderson had eaten a plastic bag and other items, including milk cartons, plastic forks, and his smock. He refused to wear clothes and had been placed on suicide watch. Dahlke, with the assistance of Lt. Steffen, repeatedly attempted to contact Anderson's probation agent in an effort to release him from jail so he could get the care and treatment he needed, but as noted in the Court's decision granting the State defendants' motion to dismiss, the agent did not return her calls and then went on an extended leave of absence. Dahlke also contacted Family Services and requested approval to transfer him to the BCTC on an emergency detention pursuant to Wis.Stat. § 51.15.

         When Dahlke initially contacted Family Services by phone on November 21, she was told that based on her description of his condition Anderson did not meet the requirements for Emergency Detention under § 51.15. Lt. Steffen then called Family Services and asked that someone be sent to the jail to assess him face-to-face. A counselor came to the jail and met with Anderson, but reached the same conclusion. She concluded that Anderson did not meet the emergency detention qualifications on November 21, 2013, because

1.) Josh [Anderson] has not attempted suicide in the past 24 hours. 2.) He denied current suicidal ideations. 3.) Josh did not disclose any plan to harm himself. 4.) Josh was able to contract for his safety. 5.) Josh was calm and cooperative in answering counselor's questions. 6.) He has been eating and sleeping regularly. 7.) Josh is in a supervised environment. 8.) His cell appeared clean at this time. 9.) Josh was oriented to person, place, and time.

         Thompson Aff. 56-57, ECF No. 55.

         Anderson's bizarre behavior continued. Along with his other eating habits, he ate items that he picked up off the floor of his cell where he frequently urinated. Anderson was placed in a safety cell after expressing suicidal ideations. (ECF No. 50-5 at 19.) After a second assessment on November 28, 2013, Family Services again declined to approve an emergency detention because: “1. Joshua was able to contract for his safety. 2. Joshua denied having a plan to end his life. 3. Joshua had not attempted to harm himself. 4. Joshua would remain in a monitored environment at the Brown County Jail.” Thompson Aff. 52-54 (ECF No. 55.)

         On December 3, 2013, Dahlke noted that Anderson was “still very confused and eating things he shouldn't. Still having odd behavior and not talking to staff.” (ECF No. 73-10 at 10.) Dahlke did not believe that Anderson “was fit to stay in jail at this time.” (Id.) She again called Family Services to ask about emergency detention, but was told he ...

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