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Estate of Fiebrink v. Armor Correctional Health Service, Inc

United States District Court, E.D. Wisconsin

May 3, 2019



          J. P. Stadtrnueller, U.S. District Judge.

         This 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 below.[1]


         Armor 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 as well.

         1.1 Legal Standard

         Federal 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 omitted).

         In 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.

         1.2 Analysis

         1.2.1 Respondeat Superior

         In 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).

         The 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.

         1.2.2 Monell Claims

         Plaintiffs 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.

         Plaintiffs 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. at 18.

         In 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 medical attention.

         From 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;[2] (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).

         Monell 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 Cir. 2009).

         Plaintiffs 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 action.” Id.

         In very 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, 64 (2011).

         In 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).

         Most of 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.
 Medical policies

         Plaintiffs 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.

         Despite 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.

         Even if 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.
 Detoxification policies

         Plaintiffs 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.

         The 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 withdrawing.

         Additionally, 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

         Plaintiffs 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.

         In 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 ...

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