United States District Court, E.D. Wisconsin
THE ESTATE OF KRISTINA ANN FIEBRINK by Special Administrator Nathaniel Cade, Jr., THE ESTATE OF ANGELICA M. FIEBRINK, JOSE D. MARTINEZ, JR., and ROBERT MARTINEZ, Plaintiffs,
ARMOR CORRECTIONAL HEALTH SERVICES, INC., VERONICA WALLACE, BRITENY R. KIRK, EVA CAGE, BRANDON DECKER, MILWAUKEE COUNTY, LATISHA AIKENS, LATRAIL COLE, WISCONSIN COUNTY MUTUAL INSURANCE CORPORATION, and JOHN DOES 1-20, Defendants.
Stadtrnueller, U.S. District Judge.
action arises from the death of Kristina Fiebrink
(“Fiebrink”) on August 28, 2016 at the Milwaukee
County Justice Facility (“MCJF”). On October 16,
2018, Plaintiffs filed an amended complaint alleging civil
rights violations and wrongful death claims on behalf of
Fiebrink as a result of inadequate health care at MCJF.
(Docket #57). Specifically, the claims include a Section 1983
claim based on an Eighth Amendment violation of
Fiebrink's right to medical care against all defendants;
a Monell claim against Milwaukee County and Armor
Correctional Health Services, Inc. (“Armor”); a
loss of companionship claim against all defendants based on
the Section 1983 claim; a state law negligence claim against
all defendants; and a state law loss of companionship claim
against all defendants based on the negligence claim.
Id. at 23-32. On October 30, 2018, Armor filed a
motion to dismiss Counts One and Two of the Plaintiffs'
amended complaint. (Docket #74). On March 8, 2019, Milwaukee
County, Latisha Aikens (“Aikens”), Latrail Cole
(“Cole”), and Wisconsin County Mutual Insurance
Corporation (collectively “County Defendants”);
Armor and Brandon Decker (“Decker”) (collectively
“Armor Defendants”); Eva Cage
(“Cage”) and Briteny Kirk (“Kirk”);
and Veronica Wallace (“Wallace”) filed motions
for summary judgment. (Docket #193, #210, #219, and #223).
The motion to dismiss will be addressed first, and granted in
part, for the reasons stated below. The motions for summary
judgment will also be granted in part, for the reasons stated
ARMOR'S MOTION TO DISMISS
filed a motion to dismiss Counts One and Two of
Plaintiffs' amended complaint. With regard to Count One,
Armor argues that it cannot be liable for constitutional
violations under a respondeat superior theory. With
regard to Count Two, Armor contends that the Monell
claims are overly broad, lack allegations of a widespread
policy that caused similar incidents, and lack allegations
that the policy was the moving force behind Fiebrink's
injuries. For the reasons explained below, Armor's motion
to dismiss will be granted in part and denied in part.
Because some of the Monell claims brought under
Count Two are dismissed from the entire action as improperly
pled, they are necessarily dismissed as to Milwaukee County
Rule of Civil Procedure 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief.
Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint
must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give
“fair notice of what the. . .claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
The allegations must “plausibly suggest that the
plaintiff has a right to relief, raising that possibility
above a speculative level[.]” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (quotation
reviewing the complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Id. at 480-81. However, a
complaint that offers “‘labels and
conclusions'” or “‘a formulaic
recitation of the elements of a cause of action will not
do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). The Court
must identify allegations “that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Id. at 679.
Count One of the amended complaint, Plaintiffs assert what
is, essentially, a respondeat superior claim against
Armor, alleging that it is responsible for the inadequate
health care that its employees provided by virtue of the fact
that it is their employer. (Docket #57 at 23).
Supreme Court held in Monell v. Department of Social
Services, 436 U.S. 658, 693 (1978), that a local
governmental body cannot have vicarious liability for the
constitutional violations of its employees. Instead, it can
only be liable under Section 1983 if the government's
policy or custom caused the violation. Id. at 694.
All Circuits to consider the issue have extended that
reasoning to private corporations sued under Section 1983.
Shields v. Ill. Dep't of Corr., 746 F.3d 782,
790 (7th Cir. 2014); Iskander v. Forest Park, 690
F.2d 126, 128 (7th Cir. 1982). The Seventh Circuit recently
declined to overrule Iskander's holding that
“private corporations, when deemed to be state actors
in suits under 42 U.S.C. § 1983, must be treated the
same as municipal corporations. This means that they are not
subject to vicarious liability.” Gaston v.
Ghosh, 920 F.3d 493, 494 (7th Cir. 2019). Accordingly,
Count One is dismissed as to Armor.
make the following allegations regarding the constitutional
adequacy of Fiebrink's care. First, they allege that MCJF
had “an alleged policy and procedure requiring an
inmate to receive a medical screening within 72-hours of
admission, ” and that Fiebrink did not receive such a
screening, in violation of that policy. (Docket #57 at 2).
They allege that MCJF employees knew that Fiebrink was
suffering from “life threatening withdrawal symptoms,
” but intentionally “failed to administer
withdrawal medications, employ the preventative detox
protocol, or provide any treatment.” Id. at 3.
Plaintiffs further allege that Fiebrink should have received
a medical assessment and a physical exam upon admission.
Plaintiffs aver, however, that in light of Milwaukee
County's “de facto policy and procedure” of
“avoiding performance of a medical exam, ”
Fiebrink was ignored. Id. at 15-16.
also contend that MCJF was perpetually understaffed, which
resulted in substandard medical care due to “delays in
access to care and deterioration in quality of care for
detainees.” Id. at 17. MCJF ignored
recommendations to provide adequate staffing, thereby
condoning and approving of a de facto policy of inadequate
medical care. As a result of this understaffing, Plaintiffs
allege that a “de facto policy of allowing [untrained]
correctional staff to make medical determinations about the
health and well-being of detainees” arose. Id.
support of their allegations that inadequate medical care was
part of a wide-spread problem at MCJF, Plaintiffs describe
the deaths of three inmates in 2016. Terrill Thomas died of
dehydration when MCJF cut off the water supply in his cell.
Laliah Swayzer, the newborn of an inmate, Shade Swayzer, died
after Shade was forced to give birth alone in a solitary
cell. Michael Madden died following a heart infection and
seizure, before responding officers were able to secure
this disjointed assortment of allegations in the complaint,
Plaintiffs argue, in response to the motion to dismiss, that
the following de facto policies, or customs, are the bases
for their Monell claims: MCJF's failure to (1)
conduct medical intake assessments more than once per year;
(2) require interval history and physical examinations when
someone is jailed more than once per year; (3) require
administration of medicine, or other necessary medical care,
when someone is going through withdrawal; (4) provide
adequate care to inmates; and (5) train staff on how to
respond to inmates suffering from heroin withdrawal. (Docket
#116 at 5-6). Plaintiffs allege that Milwaukee County and
Armor “were the moving force behind these de facto
policies because they refused to adequately train, supervise
and control [or discipline] staff, both correctional and
medical.” (Docket #57 at 21). In turn, these de facto
policies were “the moving force behind the
constitutional violations” that Fiebrink suffered.
Id. at 22. Plaintiffs contend that it would be
“obvious that Armor employees and correctional officers
w[ould] confront detainees that w[ould] develop symptoms from
heroin withdrawal and that those detainees will be injured or
killed by a policy and practice that eschews immediate
medical care.” (Docket #116 at 9).
allows municipalities to be held liable under Section 1983,
but not on a theory of respondeat superior.
Milestone v. City of Monroe, Wis., 665 F.3d 774, 780
(7th Cir. 2011); City of Oklahoma City v. Tuttle,
471 U.S. 808, 810 (1985). Instead, “[m]isbehaving
employees are responsible for their own conduct, ” and
“‘units of local government are responsible only
for their policies rather than misconduct by their
workers.'” Lewis v. City of Chicago, 496
F.3d 645, 656 (7th Cir. 2007) (quoting Fairley v.
Fermaint, 482 F.3d 897, 904 (7th Cir. 2007)). For
municipal liability to arise under Section 1983, the
constitutional violation must be brought about by (1) an
express municipal policy; (2) a widespread, though unwritten,
custom or practice; or (3) a decision by a municipal agent
with “final policymaking authority.” Darchak
v. City of Chicago Bd. of Ed., 580 F.3d 622, 629 (7th
do not take issue with a specific policy; rather, they
proceed under the second species of Monell
liability. Accordingly, Plaintiffs must plead facts allowing
the reasonable inference that Defendants were deliberately
indifferent to these widespread practices. Palmer v.
Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003); Bd.
of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520
U.S. 397, 407 (1997). Only if Defendants consciously ignored
a need for action can it be said that they adopted a de
facto “policy” of violating inmates'
constitutional rights. City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989); Calhoun v.
Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (“If the
same problem has arisen many times and the municipality has
acquiesced in the outcome, it is possible (though not
necessary) to infer that there is a policy at work.”).
This can be demonstrated “by showing a series of bad
acts and inviting the court to infer from them that the
policymaking level of government was bound to have noticed
what was going on and by failing to do anything must have
encouraged or at least condoned, thus in either event
adopting, the misconduct of subordinate officers.”
Jackson v. Marion Cty., 66 F.3d 151, 152 (7th Cir.
1995). In other words, because Plaintiffs'
Monell claims generally target the Defendants'
lack of policies, Plaintiffs must plead facts alleging that
the “gap” in Defendants' policies reflected a
decision to act unconstitutionally. Calhoun, 408
F.3d at 380. In assessing whether the absence of a policy or
protocol gives rise to a decision to violate an inmate's
right to medical care, the Court will look for
“evidence that there is a true municipal policy at
issue, not a random event.” Calhoun, 408 F.3d
at 380. The absence of a policy could mean a variety
of things-“that the government sees no need to address
the point at all, or that it believes that case-by-case
decisions are best, or that it wants to accumulate some
experience before selecting a regular course of
rare instances, sometimes even a single constitutional
violation, “accompanied by a showing that a
municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such
a violation, could trigger municipal liability.”
Brown, 520 U.S. at 409 (citing Harris, 489
U.S. at 390). This extremely limited class of Monell
liability applies only to situations where “a violation
of federal rights may be a highly predictable consequence of
a failure to equip [officials] with specific tools to handle
recurring situations.” Id. The Supreme Court
has recently explained that in Harris, “[t]he
Court sought not to foreclose the possibility, however rare,
that the unconstitutional consequences of failing to train
could be so patently obvious that a city could be liable
under § 1983 without proof of a pre-existing pattern of
violations.” Connick v. Thompson, 563 U.S. 51,
addition to showing sufficient culpability on the part of the
governmental entity, a Monell plaintiff must allege
facts allowing the inference that the challenged policy,
practice, or custom was the “moving force” behind
her injury. Harris, 489 U.S. at 389. Simple but-for
causation is not enough. See Wilson v. Cook Cty.,
742 F.3d 775, 784 (7th Cir. 2014) (citing Brown, 520
U.S. at 410). Instead, the challenged practice “must be
closely related to the ultimate injury” that the
plaintiff suffered. Harris, 489 U.S. at 391;
Estate of Sims ex rel. Sims v. Cty. of Barbeau, 506
F.3d 509, 515 (7th Cir. 2009) (there must be a “direct
causal link” between a custom and the alleged
constitutional violations). The Seventh Circuit has said that
a “moving force” is the “catalyst”
for the injury in question, not merely a “contributing
factor.” Johnson v. Cook Cty., 526 Fed.Appx.
692, 696 (7th Cir. 2013); Thomas v. Cook Cty.
Sheriff's Dep't, 604 F.3d 293, 307 (7th Cir.
2010) (training or policy changes that “might”
have had an effect on plaintiff's treatment did not
satisfy causation requirement).
Plaintiffs' Monell violations must be dismissed
because Plaintiffs have not alleged facts that support the
inference that these policies were widespread, that the
policies had resulted in similar harm in the past, that
Fiebrink's harm was the obvious result of these policies,
or, finally, that the policies were the moving force behind
Fiebrink's constitutional harm.
argue that they allege that Armor had “a policy and
practice” of conducting “clinical intake
assessments by medical practitioners. . .only once per
year.” (Docket #116 at 5). Plaintiffs also claim that
Armor “lacks a policy requiring an interval history and
physical examination when someone is jailed more than once in
a year.” Id. These policies articulate the
same failure to conduct an adequate and timely medical
examination upon re-entry to MCJF, so they will be analyzed
as one policy. Plaintiffs argue that these policies were
widespread, systematic, and the moving force behind
Fiebrink's constitutional harm.
claiming a policy of inadequate medical examination for
inmates re-entering CMJF, in their amended complaint,
Plaintiffs acknowledge that Armor conducted an initial health
screening of Fiebrink when she was booked. (Docket #57 at
14). They also state that it was Armor's policy to
“require an inmate to receive a medical screening
within 72-hours of admission.” Id. at 2.
Fiebrink did not receive her screening before she died,
id., because the screening was re-scheduled, but a
policy was nevertheless allegedly in place. The complaint,
therefore, undermines the very Monell policies of
which it tries to make claims.
Plaintiffs had successfully alleged a cognizable policy of
failing to appropriately examine newly re-admitted inmates,
there are still no allegations that Armor was on notice that
its health screening policies were likely to result in
violations of inmates' constitutional rights. Plaintiffs
do not point to a single other instance of constitutional
harm arising from Armor's medical screening policies as
they relate to re-entering inmates.
attempt to allege Monell claims based on Armor's
lack of a policy “requiring the administration of a
preventative detoxification protocol, ” and the policy
and practice of failing to provide “medication or other
immediate medical care when withdrawal symptoms are
observed.” (Docket #116 at 5). These policies
articulate the same failure to provide adequate care to
inmates suffering from withdrawal, so they will be analyzed
as one claim.
facts of the amended complaint suggest that the decision to
administer taper medication is conducted on a case-by-case
basis. See (Docket #57 at 6-7). That complaint
points to no other instances of abject denial of medications
that suggest a de facto policy of withholding necessary
medications from heroin users. Moreover, the amended
complaint indicates that medical care was envisioned for
Fiebrink as her withdrawal was monitored. Id.
Therefore, Plaintiffs have failed to sufficiently plead the
existence of a de facto policy of refusing medical attention
or medication for inmates who used heroin and/or are
even if they had sufficiently pled such a policy, Plaintiffs
have failed to point to a single other constitutional
violation arising from such a policy. Accordingly, there are
no facts to suggest Armor's knowledge that such a
practice commonly occurred. To the extent that Plaintiffs
attempt to allege a single-incident Monell claim,
they have not credibly alleged that “a violation of
federal rights [is] a highly predictable consequence
of” failing to immediately medicate an inmate who
indicates heroin use or demonstrates withdrawal symptoms.
Brown, 520 U.S. at 409. The amended complaint
contains facts suggesting that Fiebrink's withdrawal was
supposed to be monitored, which undermines the “high
predictab[ility]” of the constitutional violation.
Id. For example, that complaint indicates that taper
medications were evaluated, but determined to be unnecessary
at the time of admission. (Docket #57 at 6-7). Meanwhile,
three nurses were ordered to conduct detox/withdrawal
monitoring of Fiebrink over the course of several days.
Id. at 6. The amended complaint, therefore, does not
support the allegation that Armor had a widespread, de facto
policy of withholding medical care to inmates suffering from
or at risk of withdrawal.
Failing to provide adequate medical care
broadly allege that Armor failed to provide adequate medical
care to inmates and point to four deaths at MCJF in 2016 in
an attempt to illustrate a wide-spread practice of ignoring
medical needs. The deaths, discussed above, include
Fiebrink's, a baby who was born in solitary confinement,
a man who died in solitary confinement when his water was cut
off for six days, and a man who died after suffering from a
heart condition and a seizure.
Terry v. County of Milwaukee, this Court declined to
find a widespread municipal custom or practice of ignoring
inmates' medical needs based on these same deaths. 2018
WL 2567721, at *4, *6 (E.D. Wis. June 4, 2018). The Court
explained that the circumstances surrounding each death were
too distinct to suggest a pattern. As here, the plaintiffs
made no allegations that the same staff, medical conditions,
or policies were behind the deaths. The only common fact
underlying each passing was that these individuals died in
MCJF custody because their medical needs were
ignored-“though one instance of being ignored appears
to mean something vastly different from the next.”
Id. at *7. The Court must reiterate what it held
then, which is that there are insufficient factual
allegations to suggest that “tolerating the problem
amounted to a conscious choice.” Id. at *8.
Indeed, the “custom ...