Nadeau v. Shipman

Full title: Diana NADEAU, individually and on behalf of the next-of-kin of John…

Court: United States District Court, D. North Dakota.

Date published: Jul 2, 2020

471 F. Supp. 3d 952 (D.N.D. 2020)

Opinion

Case No. 1:17-CV-00074

2020-07-02

Diana NADEAU, individually and on behalf of the next-of-kin of John Nadeau, Plaintiff, v. David SHIPMAN, in his individual and official capacity as Morton County Sheriff, Deborah Addy, in her individual capacity, Boyd Addy, in his individual capacity, Tina George, in her individual capacity, John Does 1-2, in their individual capacities as Morton County correctional officers, John Does 3-4, in their individual capacities as Morton County Correctional Center medical staff, and Morton County, Defendants.

Robert Bennett, Gaskins Bennett Birrell, LLP, Andrew J. Noel, Marc E. Betinsky, Robins Kaplan LLP, Minneapolis, MN, Timothy Q. Purdon, Robins Kaplan LLP, Bismarck, ND, for Plaintiff. Randall J. Bakke, Bradley Neuman Wiederholt, Shawn A. Grinolds, Wade Anthony Davison, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendants David Shipman, Morton County. Peter W. Zuger, Ronald H. McLean, Serkland Law Firm, Fargo, ND, for Defendant Deborah Addy. Tracy Vigness Kolb, Meagher & Geer PLLP, Bismarck, ND, for Defendant Boyd Addy.

Daniel M. Traynor, District Judge

Robert Bennett, Gaskins Bennett Birrell, LLP, Andrew J. Noel, Marc E. Betinsky, Robins Kaplan LLP, Minneapolis, MN, Timothy Q. Purdon, Robins Kaplan LLP, Bismarck, ND, for Plaintiff.

Randall J. Bakke, Bradley Neuman Wiederholt, Shawn A. Grinolds, Wade Anthony Davison, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendants David Shipman, Morton County.

Peter W. Zuger, Ronald H. McLean, Serkland Law Firm, Fargo, ND, for Defendant Deborah Addy.

Tracy Vigness Kolb, Meagher & Geer PLLP, Bismarck, ND, for Defendant Boyd Addy.

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Daniel M. Traynor, District Judge

[¶1] THIS MATTER comes before the Court on several Motions for Summary Judgment made by the remaining Defendants in this action.¹ Defendant Deborah Addy made a Motion for Summary Judgment on August 7, 2019. Doc. No. 81. Defendants Morton County and David Shipman in his individual and official capacities as Morton County Sheriff made a Motion for Summary Judgment on August 9, 2019. Doc. No. 86. Defendant Boyd Addy also made a Motion for Summary Judgment on August 9, 2019. Doc. No. 92. The Motions have been fully briefed and the matter is ripe for review. For the reasons set forth below the Motions for Summary Judgment by Deborah Addy and Boyd Addy are DENIED. The Motion for Summary Judgment by Morton County is DENIED, in part, as to the claims against the County and David Shipman in his official capacity as Sheriff, and GRANTED, in part, as to David Shipman in his individual capacity.

1 Defendants, Tina George, John Does 1-2, and John Does 1-3 were dismissed with prejudice pursuant to the parties’ stipulation on May 16, 2018. Doc. Nos. 63, 64.

JURISDICTION AND INTRODUCTION

[¶2] This suit arises out of the suicide of John Nadeau ("John") at Morton County Correctional Center in Mandan, North Dakota occurring in the late hours of October 25, 2013, while he was a pretrial detainee. Plaintiff, Diana Nadeau ("Diana") is John's natural mother and she brings this suit on behalf of herself and John's next of kin.² See Doc. No. 1.

2 The Court concludes John's natural mother, Diana, has standing and is the appropriate person to bring this action consistent with North Dakota law. See N.D.C.C. § 32-21-03 ; Szymanski v. Davidson, No. 4:09-CV-062, 2011 WL 5593134, at 6-7 (D.N.D. Nov. 17, 2011) (Hovland, J.). Although Diana has third priority to maintain a wrongful death action by North Dakota statute, John was unmarried at the time of his death and his surviving children were minors. The Court's review of the record indicates no one with a higher priority is available to effectively bring the claim. Diana has brought this suit on behalf of herself and as a representative of John's next of kin, which is consistent with North Dakota law that a wrongful death action is for the exclusive benefit of the decedent's heirs at law. Satterberg v. Minneapolis, St. Paul & S.S.M. Ry., 19 N.D. 38, 121 N.W. 70 (N.D. 1909). Any concerns about distributing the shares of any recovery to John's heirs at law may be made by motion to the Court at the appropriate time.

[¶3] Defendant, Morton County, is a political subdivision of the State of North Dakota. Id. at ¶7. Defendant, David Shipman ("Shipman") was the Sheriff of Morton County at the time of John's death, and the designated Administrator of the Morton County Correctional Center ("MCCC"). Id. at ¶8. Defendant, Deborah Addy ("Nurse Addy"), was the contracted Registered Nurse at MCCC. Id. at ¶9. Nurse Addy saw John on multiple occasions for sick call during his troubled 38-day stay. Defendant, Boyd Addy ("Dr. Addy"), a physician, was MCCC's designated Health Care Administrator by contract. Id. at ¶10. Dr. Addy never saw John for medical treatment during his detention and relied on information he learned from others, primarily his wife, Nurse Addy, to oversee John's custodial medical care.

[¶4] Diana alleges the Defendants, acting under color of state law, were deliberately indifferent to John's serious medical needs, including the risk of suicide, in violation of his Eighth and Fourteenth Amendment rights. She brings this action pursuant to 42 U.S.C. §§ 1983 and 1988 for violation of John's federal civil rights. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

FACTUAL BACKGROUND

[¶5] The facts are viewed in the light most favorable to Plaintiff, the non-movant, in a motion for summary judgment. Krosch v. JLG Indus., Inc., 590 F. Supp.2d 1169, 1173 (D.N.D. 2008).

[¶6] John was twice held in pretrial custody at MCCC during September and October 2013. MCCC was a small jail housing approximately 30 to 40 inmates in Mandan, North Dakota. Sheriff Shipman was the jail's Administrator and Captain David Psyck ("Captain Psyck") was the Assistant Administrator. Several correctional officers ("CO") had critical roles in overseeing John's detention, including Larry Cherrey ("CO Cherrey"), Jennifer Roemmich ("CO Roemmich"), Ricky Olson ("CO Olson"), and Brian Trondson ("CO Trondson").

[¶7] John's first stay at MCCC was in early September 2013. On September 2, 2013, John was found sleeping on top of the roof of a garage after two days of heavy drug use, including alcohol, marijuana, and methamphetamine, and was taken to St. Alexius's emergency room by ambulance. See Doc. No. 101-6, pp. 26-30, 35-39. John was agitated, aggressive, and acted bizarrely during his emergency room course. Id. An emergency hold was placed over him and John was admitted to St. Alexius Hospital in Bismarck, North Dakota, for observation. Doc. No. 101-6, pp. 32-34, 52-54.

[¶8] On September 4, 2013, Dr. VanValkenburg saw John for a psychiatric consultation and assessed his condition as psychosis secondary to methamphetamine and cannabis consumption, antisocial personality disorder, and other medical and social problems.³ Doc. No. 93-1, p. 3. Dr. VanValkenburg recommended John be treated at the North Dakota State Hospital ("State Hospital"). Id. However, because John was not then suicidal and had outstanding warrants for his arrest, his probation officer arrested and transported him to MCCC. Doc. No. 101-6, p. 55.

3 There is no direct evidence that Sheriff Shipman or anyone at MCCC were aware of Dr. VanValkenburg's conclusions and recommendations for John. Her report was not provided to or requested by MCCC.

[¶9] John was booked into MCCC at 11:53 a.m. on September 4, 2013. Doc. No. 101-6, pp. 2-3. During booking, a medical receiving screening form ("medical screening form") was completed indicating John answered affirmatively for allergies, arthritis, asthma, psychological disorder, sexual offenses, sex crime victim, having been recently hospitalized, and currently taking prescribed medications. Doc. No. 101-7, pp. 80-81. The booking officer's written comments indicate John reported depression and anxiety. Id.

[¶10] On September 6, 2013, John had an initial visit with Nurse Addy to discuss his medications. Doc. 83-5, p. 2. Nurse Addy's notes reflect the following medications were scheduled for him: hydroxyzine for asthma /anxiety, gabapentin for pain, Effexor for depression, and several other medications for allergies, asthma, joint and muscle pain. Id. On September 11, 2013, Nurse Addy saw John again and they "spoke [at] length regarding his anxiety." Id. at p. 3. She recorded John was afraid his heavy drug use caused heart damage and was upset and tearful regarding the events leading to his arrest. Id. Although Dr. Addy did not see John, Nurse Addy conferred with him following her visit with John and, in response Dr. Addy increased John's dosages of hydroxyzine and gabapentin and added lorazepam for anxiety. Id. John was on these medications until September 13, 2013 when he was released on bond.

[¶11] Four days later, on September 17, 2013, John was brought to Sanford Hospital emergency room in Bismarck, North Dakota. John had been missing for several days, using drugs, and had a self-inflicted stab wound to the right side of his neck. Doc. No. 83-1, p. 4. The wound was described by the ER physician who repaired it as a complex, eight-centimeter laceration that did not penetrate beyond the sternocleidomastoid muscle. Id. at p. 15. John was admitted to the hospital for being a danger to himself. Id. After admission, John was referred to psychiatry and seen by Tonya Auck, a mental health nurse practitioner ("NP Auck"). Id. at p. 4. John reported to NP Auck that his girlfriend had left him for his best friend and so he cut on himself, explaining "I didn't want to die, but I did ... So I didn't try too hard." Id.

[¶12] After consulting with John, interviewing his mother, and reviewing his records, NP Auck concluded John was "more than likely a sociopath and is antisocial." Id. NP Auck was aware John was likely facing jail or prison time for his probation violations and advised that he be kept on "suicide precautions while in jail until his mood is stabilized." Id. at p. 9. NP Auck reported "[m]ore than likely when he sobers up, he will not be as suicidal. He is also very attention-seeking and manipulative. His mother agrees. He is going to be at risk for suicide due to his impulsive behaviors along with his antisocial personality." Id. NP Auck determined no inpatient workup was required, and recommended John be discharged to the custody of the jail.⁴ Id. at pp. 2, 9.

4 There is no evidence MCCC was provided with or requested NP Auck's report and conclusions.

[¶13] On September 18, 2013, after an overnight stay, John was discharged from Sanford. His condition at discharge was noted as "[s]table, but needs mental health follow-up." Id. at p. 2. The discharging doctor issued Physician Orders indicating John needed "mental health follow-up in correctional facility [or] outpatient." Doc. No. 93-7. Sanford's September 18, 2013 Physician Orders became part of John's medical file at MCCC. Doc. No. 83-2, p. 23, pc. 73-74.⁵

5 References to deposition transcripts are cited to the assigned docket number, the electronically assigned page number, and a pin-cite to the condensed deposition transcript page number, for example: "83-2, p. 23, pc. 73-74."

[¶14] John was again arrested for probation violations and returned to MCCC arriving about 12:00 p.m. on September 18, 2013. Doc. No. 83-4, p. 2. CO Josh Lloyd was the booking officer. Id. CO Lloyd filled out a form titled "MCCC Special Management Inmate"⁶ specifically designating John as a special management inmate based on intoxication and special medical needs. Id. at p. 4. Though the form includes check boxes for "suicidal" and "mental problem," neither was selected; however, CO Lloyd commented "under influence of drugs received at Sanford for self inflicted wound to neck—has several stitches on right side of neck." Id. John was assigned to one of MCCC's two isolation cell, referred to as ISO. Id.

6 A special management inmate is defined by MCCC's Policies and Procedures Manual to include "persons whose behavior presents a serious threat to the safety and security of the facility, the inmate, the staff or the general inmate population." Doc. No. 89-2, p. 77.

[¶15] Part of the booking process is to complete the medical screening form. Id. at pp. 5-6. At the time of booking, CO Lloyd only partially completed the form indicating John was "under influence of drugs received at Sanford for self inflicted wound to neck, right side of neck has several stitches from wound" and noting that John was taken "straight to ISO." Id.

[¶16] At 7:16 p.m. on September 18, 2013, CO Cherrey completed a second medical screening form with John. Doc. No. 83-4, pp. 7-8. Like his first MCCC booking in early September, John responded affirmatively to having medical conditions of allergies, arthritis, asthma, head injury, heart condition, hepatitis, psychological disorder, and sexual offenses/victim. Id. at p. 7. Additionally, unlike his first booking, John responded affirmatively to the question "have you ever attempted suicide." Id. CO Cherrey's written comments noted "attempted suicide," history of anxiety and depression, and "takes a bunch of prescription medications." Id. at p. 8. No details regarding John's attempted suicide were recorded by CO Cherrey. Id. At his deposition, CO Cherrey could not confirm whether he asked John any follow up questions regarding the suicide attempt or his current thoughts of suicide. Doc. 88-4, p. 12, pc. 36, p. 14, pc. 41-42.

[¶17] John was kept in isolation until 2:25 a.m. on September 19, 2013, when he was transferred to a single cell in general population. Doc. No. 88-5, p. 3; Doc. No. 88-6, p. 17, pc. 53. The Special Management Inmate form specifically required the Captain to authorize changes to John's status, but there is no evidence that Captain Psyck did so. Doc. No. 83-4, p. 4; Doc. No. 88-6, p. 17, pc. 55. In fact, Captain Psyck testified the officers "probably didn't call me and ask me if they could move him at 2:30 in the morning, no." Id.

[¶18] There are few official MCCC records detailing John's detention from September 19 until September 25, 2013. What is available are several recorded telephone conversations between John and Diana, which illuminate John's increasing anxiety, depression, and despair.⁷ For instance, on September 20, 2013, John spoke to Diana twice telling her he was "having a hard time," he wanted to "go to the state hospital to get his head checked," and confided "I don't know if I want to continue to live." Doc. No. 101-6, call # 20130920, 093305; call # 20130920, 145443.⁸ He stated, "I've never been suicidal before" and "I don't want to keep going on like this." Id. call # 20130920, 145443. He was crying at many points during these conversations.

7 Plaintiff conventionally submitted digital copies of select recorded telephone calls made by John while in custody. See Doc. No. 101-6. The Court has reviewed the recordings in conjunction with the selected transcripts for some of the calls. The recordings have been sealed due to the sensitive personal nature of those conversations. Doc. No. 102. Citations to the recorded calls are to the docket number, Doc. No. 101-6, and the assigned call identification number.

8 The call identification number references the date and military time when the call was made. For instance, "20130920, 093305" means the call was placed on September 20, 2013 at 9:33:05 a.m.

[¶19] On September 24, 2013, John had three emotional calls with Diana where he was crying and sobbing. Doc. No. 101-6, call # 20130924 080653, # 20130924 093157, #20130924 194633. He expressed "feeling like a disappointment," complained of high anxiety, a tight chest from claustrophobia, and expressed being upset that his girlfriend, Angela, had not stuck by him after their baby was born prematurely and died. Id. call # 20130924, 080853. At one point, John said "I want to kill myself, Mom." Id. Diana asked if he needed to be on suicide watch. Id. John denied needing suicide watch but continued to state he was "having such a hard time." Id. After this call, Diana investigated involuntarily committing John by contacting his attorney, Kent Morrow, the State's Attorney Office, and MCCC, but was consistently informed she would have to go through the courts since he was in custody. Doc. No. 88-18, p. 22, pc. 70-73; Doc. No. 101-6, call #20130924 093157.

[¶20] John requested sick call on September 25, 2013, to remove his stitches and for help with his medications that "were not right." Doc. 83-5, p. 4. John wrote: "I need to go the psych ward to be evaluated by a [doctor]." Id. To obtain a nurse visit, an inmate filled out a medical sick call request form, sometimes referred to as a "kite," that identified the inmate, date, and nature of complaint. See, e.g., Doc. No. 83-5. The kites were turned in to the office and Nurse Addy typically saw the inmate at the next sick call. Doc. No. 83-2, p. 13, pc. 36. Nurse Addy was at the jail every Wednesday for sick call and sometimes on Fridays. Id.

[¶21] Nurse Addy saw John mid-morning on September 25, 2013, to examine and treat his neck wound. Id. John expressed being upset about his medications. Id. He had left MCCC in early September with the medicines then prescribed to him, but he no longer had them. Id. at p. 5. Nurse Addy documented that Dr. Addy had ordered his medications again last week, but John also wanted hydroxyzine. Id. Nurse Addy discussed the request with Dr. Addy and documented his response as "no further meds will be ordered." Id. John told Nurse Addy he "want[ed] to go to a psych ward" but she "[i]nformed him he needs to talk to his [attorney] for a judge's order. I am not able or the jail physician to order psych evaluations." Id. Her notes reflect that John remained upset and she referred him to Captain Psyck. Id.

[¶22] Captain Psyck was asked about his discussion with John after Nurse Addy's referral during his deposition. He testified he did not have any knowledge of what was done, and generally had very little specific recollection of John's detention at all, claiming a bad memory. Doc. No. 88-6, pp. 22-23, pc. 73-80. Captain Psyck testified John probably expressed suicide ideation to him during his stay, but said he had no specific recollection. Id. at p. 9, pc. 21. The only reason John stood out in the Captain's mind was because he was high maintenance, manipulative, and attention seeking. Doc. No. 88-6, p. 7, pc. 14. Captain Psyck thought John was "making up stuff to get out of jail," but they followed up on his complaints, which he thought "were mostly always proven to be ... false." Id. at p. 8, pc. 17, 19.

[¶23] In a telephone call to Diana at 6:23 p.m. on September 25, 2013, John told her he was sick out of his mind with the way he had been thinking and could not handle it. Doc. No. 101-6, call # 20130925, 182338. He reported something was wrong with his medications and he had never been this depressed. Id. John relayed having told Nurse Addy that day at sick call that he was having suicidal thoughts and needed his medications changed. Id. John recounted Nurse Addy's response as: "You are going to have to deal with it—you aren't going to be on all those meds." Id.

[¶24] During the conversation with his mother, John recalled it was the one-month anniversary of his baby's death. Id. John stated he had written a suicide note three nights ago but ripped it up and threw it in the garbage. Id. He said he was furious and going to bash his head against the door if they didn't get him into a psych ward. Id. He expressed frustration that nobody wanted to listen to him, and he wanted to give up. Id.

[¶25] Shortly before midnight on September 25, 2013, John got the attention of CO Trondson who was nearby and motioned him over to his cell. Doc. No. 95-4, p. 3. CO Trondson reported John said, "he had tried to kill himself by stabbing his neck wound with a pen," and he had "shoved feces in the wound to infect it so he would die." Id. The jail log indicates "CO Trondson radioed for assistance to C1 for suicide attempt" at 11:47 p.m. Id. at p. 2. An ambulance was requested a few minutes later. Id. Two other COs appeared to help CO Trondson. Id. John was initially escorted to ISO but became irate, so CO Trondson instead took him to the indoor recreation room to await the ambulance. Id. at p. 3. John told CO Trondson "he would smash his head [against] the wall until he was dead." Id. CO Trondson asked why John wanted to hurt himself and reported John's response as "we were not taking him seriously and he wanted to show us how serious he was. He also stated that his life was messed up and not worth living." Id. Captain Psyck was notified of the event at approximately 11:50 p.m. and reportedly kept apprised of developments. Id. An incident report was later prepared categorizing the event as a "suicide attempt." Id. at pp. 4-8.

[¶26] CO Olsen accompanied John in the ambulance to St. Alexius emergency room, where he was seen by Dr. McCullough. See Doc. No. 83-7. Dr. McCullough documented John's chief complaint as depression and suicide attempt. Id. at p. 5. John reported these complaints started weeks ago after his girlfriend had miscarried. Id. Dr. McCullough examined John and ordered lab work. Id. She recorded that John "seems generally angry and manipulative." Id. at p. 7. Dr. McCullough spoke with psychiatry about John's suicidal ideation/attempts, but that doctor did not think admission was necessary because the jail was able to place John on suicide watch and could obtain a psychiatric evaluation through West Central Human Services ("West Central"). Id.

[¶27] Dr. McCullough's clinical impression included "suicidal ideation," and she indicated she planned to discuss John's case with Dr. Addy in the morning.⁹ Id. at p. 8. She issued discharge instructions stating that John need to be placed on suicide precautions. Doc. No. 93-10. She advised John: "You will get the help that you need for psychiatric care, but sometimes this takes time." Id. Dr. McCullough's discharge instructions became part of John's medical file at MCCC. Doc. No. 83-2, p. 14, pc. 39.

9 Dr. McCullough did, in fact, speak with Dr. Addy the next day about John's incident which she described as "bizarre." Additional information regarding this call is discussed below in the claim against Dr. Addy.

[¶28] John returned to MCCC at 3:55 a.m. on September 26, 2013. Doc. No. 95-4, p. 2. He was put in ISO and given a suicide smock and suicide blanket. Id. He was placed on special observation status for drugs and suicide and was to be checked every half-hour. Doc. No. 83-8.

[¶29] Though John expressed to CO Trondson the night of the feces incident that he "wanted to smash his head against the wall until he was dead," MCCC's administrators, medical professionals, and staff did not think the feces incident was a "real" suicide attempt. Sheriff Shipman denied this was a suicide attempt, explaining "the most you can get from putting feces into a wound would be an infection." Doc. No. 88-10, p. 9, pc. 23-24. Captain Psyck testified "that's not a way a person would attempt to commit suicide. It's a way a person would get themselves to the hospital and ... get medical attention, but it's not a way a person would attempt suicide ... it could be a manipulation which ... John was good at manipulating things." Doc. No. 88-6, p. 8, pc. 20. Nurse Addy testified she thought putting feces in the wound was John's way of getting the stitches out of his neck and did not believe it was suicide ideation. Doc. No. 83-2, p. 13, pc. 33-34; p. 18, pc. 53. Dr. Addy thought John was trying to get attention. See Doc. No. 95-1, p. 34, 117-18. CO Cherrey stated it was not a suicide attempt in his opinion. Doc. No. 88-4, p. 8, pc. 18-20. CO Olsen also denied considering the feces incident a suicide attempt. Doc. No. 89-4, p. 10, pc. 95.

[¶30] On September 27, 2013, a bond review hearing was held before Judge David Reich. Doc. No. 83-9. Kent Morrow, John's lawyer ("Attorney Morrow"), informed the Court John had attempted suicide both before and while being held at MCCC. Id. at p. 3. Attorney Morrow asked for an order transporting John to the State Hospital for a mental health screening and medication to get him back on track. Id. Attorney Morrow asserted it would be detrimental and a potential liability for the detention center to have him in custody while he was suicidal. Id. The Assistant State's Attorney was agreeable to the proposal, and the Court granted the request that John be screened at the State Hospital. Id. at p. 4.

[¶31] Later, on September 27, 2013, Assistant State's Attorney Brian Grosinger ("Attorney Grosinger") emailed Judge Reich advising he had been in contact with the State Hospital and they were unable to make arrangements for John on short notice. Doc. No. 83-10. Attorney Grosinger stated he was attempting to arrange an evaluator through West Central to do an onsite assessment and requested approval to proceed in this revised fashion. Id. Judge Reich responded that West Central should do the evaluation if this was all that was available. Id. Attorney Morrow agreed to the change. Doc. No. 83-11.

[¶32] That same evening, September 27, 2013 at 6:20 p.m., CO Cherrey moved John from ISO to F1. F1 was described as a maximum security, single cell near the jail office that was used for special monitoring but did not have closed circuit monitoring like ISO. Doc. No. 88-6, p. 14, pc. 41. John was reportedly moved on his "promise not to hurt [himself] or do anything remotely harmful to [himself]." Doc. 83-8, p. 3. CO Cherrey documented: "I told him if anything does happen he would be in ISO for the rest of his stay as staff has little trust with him." Id. According to the special inmate log, John responded they "would not have a problem." Id. John's records indicate he was still on special observation status for being suicidal despite the move. Id.

[¶33] On September 30, 2013, Tina George (n/k/a Tina Weiss) ("Nurse George") from West Central arrived at MCCC to conduct a State Hospital screening for John. Doc. No. 83-12, p. 2. Nurse George was an RN and had a Bachelor of Science in nursing. Id. She was aware John had made suicidal gestures in the past two weeks. Id. Nurse George spent 75 minutes with John. Id. Following the screening, she prepared a progress note indicating John displayed no signs or symptoms of psychosis or delusional thinking during their visit. Id. Since John was an open client at West Central, Nurse George noted a referral could be made for him to have individual therapy services and an appointment could be made with psychiatry to have his medications reassessed. She noted John was "being monitored routinely per [MCCC's] protocol and was not found to be appropriate for [State Hospital] transfer." Id.

[¶34] On October 1, 2013, Nurse George provided a summary of her findings to Attorney Grosinger. Doc. No. 93-14. She reported John was oriented to person, place, date, and time and did not display signs or symptoms of psychosis or delusional thinking. Id. at p. 2. He had been recently seen in the emergency room for self-inflicted injury but was released back to MCCC. Id. She reported John expressed feeling that his medications were not working and was afraid "something [was] wrong in my head." Id. John wanted to be seen for a full evaluation at the State Hospital, however, since he was an open client at West Central a referral could be made for him to see their psychiatrist for reevaluation of his medications. Id.

[¶35] Nurse George advised John was "obviously distraught, depressed, and reports difficulty sleeping and anxiety when in solitary confinement." Id. Several recent stressors were identified including, legal charges, incarceration, potential revocation, breaking up with his girlfriend, and the death of his baby. Id. She reported John could be referred for individual therapy at West Central and this may benefit him. Id. Finally, Nurse George noted John denied any suicidal ideation at the time of her interview and reported no intentions of hurting himself or others. Id. She indicated John was not in imminent danger and concluded the routine monitoring per MCCC's protocol "provides him with a safe, supervised environment around the clock." Id. West Central recommended John continue to be seen medically by Dr. Addy and his staff and concluded State Hospital placement inappropriate because John was not determined to be in imminent danger to himself or others. Id. Nurse George told Attorney Grosinger that West Central would refer him for psychiatry services in-house for reevaluation of his psychotropic medications and MCCC would be notified of the date and time. Id.

[¶36] Attorney Grosinger shared George's report, findings, and recommendations with the Court and Attorney Morrow by email, and it was further forwarded by email to Sheriff Shipman and Captain Psyck on October 1, 2013. Id. at p. 1. Later that same day, October 1, 2013, John was released from special observation status, returned to the general population, and all privileges were returned to him. Doc. No. 83-8, p. 7.

[¶37] On October 2, 2013, Nurse Addy saw John for a required history and physical exam pursuant to MCCC's policy. See Doc. No. 83-3. The form for this examination includes a number of standard social and health history questions, including marital status, occupation, medications, allergies, surgical history, drug, tobacco, and alcohol use. Id. The form includes a number of check boxes for health history conditions like high blood pressure, irregular heart-beat, asthma, smoking, arthritis, ulcer/heartburn, depression, M.R.S.A., chronic pain, and drug use, all to which John responded affirmatively. Id.

[¶38] There were no questions on the health history form for prior suicide attempt or current suicide ideation or thoughts. Id. Nurse Addy did not ask questions about thoughts of suicide when she saw him on October 2, 2013 even though he had recently been taken to St. Alexius hospital for a suicide attempt and had been on special observation status up until the previous day. Nurse Addy testified she did not ask about suicide because this would invoke the "power of suggestion" and John was an attention seeker. Doc. No. 83-2, p. 18, pc. 53-54; p. 20, pc. 63-64. When further questioned whether she tried to determine if John was at risk for hurting himself at any point during his detention, Nurse Addy testified she "never got into psych questions with him because I'm not qualified to answer them to him" and she did not feel it was part of her job. Id. at p. 30, pc. 102-03.

[¶39] Nurse Addy's notes from October 2, 2013, indicate they discussed John's increased anxiety at length, which was described as his main concern. Doc. No. 83-3, pp. 3-4. John reported the need for more anxiety medications and said his blood pressure was high due to his increased anxiety. Id. at p. 4. Nurse Addy noted John had been seen by a representative from West Central the previous day and indicated his medications would be "ordered by them." Id. She noted he was currently on anxiety/depression medications by Dr. Addy but stated his request for more medications "will be decided by a [doctor at] West Central." Id. At that point, an appointment date had not yet been set for John to see West Central's psychiatrist.

[¶40] On October 8, 2013, Nurse George's referral for psychiatry services with Dr. Capan at West Central was approved by her supervisor. See Doc. No. 83-12, p. 3. The appointment with Dr. Capan was scheduled for November 22, 2013, the soonest date available. Id. [¶41] On October 9, 2013, John saw Nurse Addy for complaints of increasing anxiety and help with his medicines. Doc. No. 83-5, p. 9. She documented John was feeling very anxious, had back pain. and migraines. Id. Dr. Addy was notified, and he increased John's dosages for gabapentin and lorazepam and added hydroxyzine. Id. Nurse Addy noted John awaits an appointment with West Central. Id. Later that day, Nurse George called Nurse Addy to inform her of the November 22, 2013 appointment date with Dr. Capan. Id.

[¶42] On October 16, 2013, John again saw Nurse Addy to talk about his anxiety medications, migraines, and back pain. Id. at p. 10. Nurse Addy informed him the appointment with West Central was set in mid-November but could not tell him the exact date for security reasons. Id. She continued John on his current anxiety medications and added ibuprofen for back pain. Id.

[¶43] On October 21, 2013, John contacted his mother to report that the restraining order between him and Angela had been dropped. Doc. No. 101-6, call # 20131021, 114812. John was relieved and eager to talk to Angela again right away. Id. He relayed believing this was a sign from God and told Diana he loved Angela with all of his heart. Id.

[¶44] On October 22, 2013, John submitted a kite for sick call. Doc. No. 83-5, p. 11. He wanted to be seen for blood pressure, anxiety ("I needed more meds"), depression and a lump on the foot. Id. Nurse Addy did not see John on October 23, 2013, documenting he was "not seen—discussed [with] Sheriff" on the sick call request. Id. Nurse Addy could not recall why she had not seen John on October 23, 2013 but recalled talking to Sheriff Shipman about not being able to see all of the inmates that day. Doc. No. 83-2, p. 32-33, pc. 111-14. Nurse Addy testified she triaged the inmates wanting to be seen and decided John could wait until Friday, October 25. See id.

[¶45] On October 23, 2013, Sheriff Shipman talked to John about his sick call request. He documented "Psych appt. is scheduled for November. Appt. date is beyond our control." Doc. No. 83-5, p. 11. John's perception of his conversation with Sheriff Shipman is recorded in a telephone call to his mother at 6:43 p.m. on October 23, 2013. Doc. No. 101-6, call # 20131023, 184310. John reported telling the Sheriff he felt he was being refused medical services because he put in a kite and was not seen by Nurse Addy. Id. According to John, Sheriff Shipman said they (referring to MCCC) had already addressed all of his problems, but John disagreed. Id. John reportedly responded they had not addressed his blood pressure and depression/anxiety. Id. To this, Sheriff Shipman reportedly responded he would contact the nurse to see what could be done about blood pressure medication. Id.

[¶46] On October 24, 2013, John spoke to Angela on the telephone and discussed his plans for the future with her. Doc. No. 101-6, call # 201324, 112903. He told Angela he believed she was part of God's plan for his future. Id. He expressed wanting to earn her trust, not wanting to lose her, and told her she is the love of his life. Id. Angela responded, "I don't know, John." Id. Undeterred by her hesitation, John told Angela he was done using drugs and would not do anything bad anymore. Id. He stated he was proud of her, looking forward to their future, and said, "We can do this." Id.

[¶47] On October 25, 2013, rounds were conducted at 7:15 a.m., all cells were visually checked, and a formal count reported.¹⁰ Doc. No. 88-19. John was being housed in the C-block. The C-block consisted of a large semi-rectangular room, called the day room, with a TV, tables, and the telephone. Doc. No. 89-4, p. 10, pc. 22; p. 27, pc. 91-92. There were three individual cells off the day room where the inmates slept. Id. at p. 10, pc. 22. During a round, a CO visually checked every inmate in the facility and had to observe each of them wherever they were, whether in the day room or in the individual cells. Id. at p. 27, pc. 92-93. A CO doing rounds was able to observe and hear an inmate on the phone. Id.

10 Forty inmates were recorded at MCCC. Id. Throughout the day, some inmates were released, and others transported but the census stayed in the mid-30s. See id.

[¶48] Shortly before noon, John was seen by Nurse Addy for constipation.¹¹ Doc. 83-5, p. 13. During the exam, John also expressed concern for his blood pressure because it was up and down.¹² See id. His blood pressure was 142/97.¹³ He reported being on propranolol while in the penitentiary in 2012. Id. Nurse Addy contacted the Department of Corrections (DOC) to confirm the blood pressure medication John had been given and learned he had not been on propranolol while in DOC custody. Id. Nurse Addy documented John was to return to DOC soon, and per Dr. Addy orders for medication were held. Id.

11 A kite had been submitted by staff late on October 24, 2013, for him to be seen at sick call. Id.

12 Blood pressure concerns were also expressed in the October 22, 2013 sick call request John made to be seen on October 23, 2013.

13 An internet search reveals that a reading of 142/97 indicates hypertension stage 1, which is the lowest form of high blood pressure. See bloodpressureok.com.

[¶49] At 6:45 p.m., Correctional Officers Cherrey, Roemmich, and Olsen began their shift. Doc. No. 88-19, p. 1. CO Cherrey conducted a jail round at 7:10 p.m., visually checked all cells, and reported an inmate count of 35. Id. at p. 2.

[¶50] John made several emotional calls that evening. The inmate telephone was attached to the wall in the day room in C-block. Doc. No. 88-20, p. 12, pc 33-34. The first call was to Angela at 8:23 p.m. Doc. No. 101-6, call # 20131025, 202346. Before she answered the phone, John stated to someone in the background "I'm not having a good fucking night, bro." Id. When Angela answered, John said he was "having a really, really bad day." Id. John reported his blood pressure was out of control, he felt like he was going to have a heart attack, and MCCC would not do anything about it. Id.

[¶51] John was also upset that Angela did not leave any messages for him that day and had not answered his calls. Id. He was worried something bad, like a car accident, had happened to her. Id. Angela mentioned being with Cody, a former friend of John's, whom she was having sexual relations as the reason she did not call. Id. John expressed frustration with her continuing sexual relationship with Cody. Id. John said "I'm just ... I lost my mind, you motherfuckers keep fucking with me and I'm sick of it" and started to cry. Id. John told Angela she meant everything to him and without her he did not want to live. Id. John wanted to get out of jail and take care of Angela Id. She responded she did not think that would happen. Id. John tried to convince her of his plans and sincerity, but Angela told him he had used her and hung up the telephone. Id.

[¶52] At 8:23 p.m., a jail round was started by CO Olsen. Doc. No. 88-19, p. 2. All cells were reportedly visually checked by CO Olsen. Id. This round occurred during the time John was on his first call to Angela.

[¶53] At 9:06 p.m., John called Angela a second time. Doc. No. 101-6, call # 20131025, 210624. He was crying before she answered the phone and continued to cry throughout the call. Id. John said he wanted Angela to know what she was doing to him. Id. He talked about taking all the blame when DEA agents interviewed him about illegal drugs. Id. He said she did not understand how much he was protecting her, he did everything he could to make them believe she had nothing to do with it, and now he was waiting for a federal indictment. Id. John complained of the way Angela had been treating him. Id. Angela became frustrated and said John should not go there with the way he had treated her for the past ten months. Id. John attempted to continue the conversation, but Angela said she was not talking to him anymore and hung up the phone. Id. This call ended at about 9:11 p.m.

[¶54] At 9:10 p.m., CO Cherrey began a jail round and all cells were visually checked. Doc. No. 88-19, p. 2.

[¶55] At 9:26 p.m., John made a last call to Angela. Doc. No. 101-6, call # 20131025, 212635. John asked Angela to quit acting like this because it was killing him. Id. He told her she does not need to worry about drug charges, he has taken her out of the equation because he loves her. Id. John expressed he is having the hardest time of his life and just wanted to talk to her and have her tell him it will okay. Id. Angela responded she is not doing this anymore. Id. John pleaded that they were meant to be together. Id. Angela responded, "no, we're not going to be together" and said she was making it on her own without him. Id. John continued to plead with Angela, admitting he had ruined things between them. Id. Angela agreed and said he had to accept that the relationship was broken into shards and could not be put back together. Id. The relationship with him was not worth the hurt and pain she experienced, explained Angela. Id. John stated it was his turn to try to put the relationship right, but Angela said she was not doing this anymore and ended the call. Id. This call ended about 9:34 p.m. Id.

[¶56] At 9:37 p.m., John called Diana to tell her he loves her and started to cry. Doc. No. 101-6, call # 20131025, 213744. He wanted to call her back collect, and Diana agreed. Id. At 9:39 p.m., Diana accepted a call from John. Id., call # 20131025, 213937. He cried and sobbed during the entire conversation, explaining how upset he was over Angela and how depressed he felt. Id. John said Angela was the only woman in the world he wanted to be with, and she has his heart. Id. John said his mother was not supposed to answer the phone; he just wanted to leave her a message that he loves her. Id.

[¶57] Employing "tough love," Diana said John and Angela's relationship was toxic, and became angry with John. Id. John told his mother he was giving up and could not keep doing this with Angela. Id. Diana again expressed how toxic their relationship was and said he should not talk to Angela anymore. Id. John was worried about having to go to prison without having anyone again, stated Diana would be away from him, and his brothers would not come see him. Id. John expressed being "fucking sad," and Diana said she was angry because he was "smarter than this bitch." Id. Later, John said he depended on Diana, and if she turned her back on him "you might as well give me a fucking shotgun." Id. Diana reminded John that she was not going to live forever, and it was time for him to "stand on his own two feet" and "man up." Id. As the phone system announced the call was ending, the two shared "I love yous." Id. The call ended at approximately 9:54 p.m. [¶58] CO Roemmich testified she found John crying in the day room before lockdown on the evening of October 25, 2013. Doc. No. 88-16, p. 16, pc 49-51. She mentioned this to CO Cherrey and CO Olsen. Id. at pc. 49. CO Roemmich testified that one of the COs took John aside and asked if there was an issue. Id. at pc. 51. This incident prompted the staff to listen to John's recorded phone calls after lockdown, which was typically around 11:00 p.m. Id. CO Roemmich testified she heard some of John's recorded calls while she was in the office, but she was not specifically listening them. Id. at pc. 52. CO Olsen confirmed he was monitoring John's recorded telephone calls that night in the jail, but he could not recall which ones. Doc. No. 89-4, p. 23, pc. 75; p. 26, pc. 86-87.

[¶59] CO Cherrey did not recall listening to John's calls on October 25, 2013 but admitted he could have done so. Doc. No. 88-4, p. 20, pc. 67-68. He did recall CO Roemmich mentioning that John was crying. Id. Elaborating on John's general demeanor, CO Cherrey described him as in the top five of criers at MCCC, he was very emotional. Id. at p. 25, pc. 87. Sometime after the telephone calls, CO Cherrey said he took John out of his cell and spoke with him in the indoor recreation area. Id. at p. 23, pc. 79; p. 26, pc. 89. According to CO Cherrey, he told John to take one day at a time and reminded him he would eventually get out of MCCC. Id. at p. 21, pc. 69. While admitting that John was distraught, CO Cherrey disclaimed believing John was suicidal. Id. at p. 21, pc. 69; p. 27, pc. 94. He further testified that before putting John in his cell for the night he asked if John was planning to harm himself. Id. at p. 24, pc. 82; p. 27, pc. 94. John reportedly said no, like he had on many other occasions when CO Cherrey asked that same question. Id. at p. 24, pc. 82. CO Cherrey did not memorialize this conversation in a report or note it on the jail log.

[¶60] At 10:15 p.m., a jail round was made, all cells were visually checked, and medications passed. Doc. No. 88-19, p. 2. At 11:00 p.m. the jail was locked down, a formal count was completed indicating 36 inmates, and all cells were visually checked. Id.

[¶61] At 11:38 p.m., CO Cherrey did a jail round and visually observed all cells. Id. Nothing unusual was noted on the jail log. Doc. No. 88-19, p. 2.

[¶62] At 11:59 p.m., CO Cherrey started another round. Id. At 12:01 a.m., he found John laying on the ground next to his bed by the toilet. Doc. No. 101-7, p. 12. John had a sheet wrapped around his neck tied to the towel hook. Id. CO Cherrey either yelled or radioed for assistance, and CO Roemmich ran to the C-block. Id. at p. 11. CO Cherrey entered the cell and went to John, lifting him up. Id. A ripped bed sheet was wrapped around John's neck several times, and CO Roemmich began to untie the knots. Id. After getting him on the floor, CO Roemmich felt for a pulse and attempted painful stimuli but received no response. Id. Chest compressions were started, CO Olsen obtained the AED machine and a bag valve mask. Id. These measures, chest compressions, bag valve mask, and AED, were used until EMTs with Metro Ambulance arrived and took over. Id.

[¶63] The inmate in the adjoining cell, David Wilcox, later stated to investigators that after lockdown, he heard John cussing, swearing, and muttering "that stupid f'ing bitch." Doc. No. 101-7, p. 6. Wilcox reported hearing the clicks of John turning the light on and off several times. Id. A few minutes after the light went out for the last time, Wilcox heard the sound of shampoo bottles being knocked around and something that sounded like a watermelon hitting the floor. Id.; Doc No. 88-20, p. 13, pc. 39-40. Wilcox heard CO Cherrey screaming and the commotion began. Doc. No. 101-7, p. 6. At his deposition, Wilcox testified he told COs John needed to be on suicide watch that night. Doc. No. 88-20, p. 20, pc. 66-68.

[¶64] John was taken to Sanford Medical Center in Bismarck, North Dakota and put on life support. Doc. No. 101-7, p. 7. On October 28, 2013, life support was discontinued, and John passed away. Id. The cause of death was anoxic encephalopathy due to hanging. Id.

ANALYSIS AND DISCUSSION

I. STANDARDS FOR SUMMARY JUDGMENT

[¶65] The Court will grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue is ‘genuine’ if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party." Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A fact is material if it ‘might affect the outcome of the suit.’ " Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Courts must afford "the nonmoving party the benefit of all reasonable inferences which may be drawn without resorting to speculation." TCF Nat'l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016) (quoting Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) ). "At summary judgment, the court's function is not to weigh the evidence and determine the truth of the matter itself, but to determine whether there is a genuine issue for trial." Nunn v. Noodles & Co., 674 F.3d 910, 914 (8th Cir. 2012) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ).

[¶66] The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). If the movant demonstrates the absence of a genuine issue of material fact, "[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Id.

II. DELIBERATE INDIFFERENCE CLAIMS

[¶67] The Eighth Amendment prohibits officials from acting with deliberate indifference to an inmate's substantial risk of death by suicide. Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003) ; Yellow Horse v. Pennington County, 225 F.3d 923, 927 (8th Cir. 2000). The Fourteenth Amendment extends at least as much protection to pretrial detainees like John. Coleman, 349 F.3d at 538. That is because, pursuant to the Fourteenth Amendment, pretrial detainees are presumed innocent and may not be punished. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). To prevail on a deliberate indifference claim, Diana must show (1) the individual defendants knew John presented a substantial risk of suicide; and (2) each failed to respond reasonably to that risk. Coleman, 349 F.3d at 538 ; Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003).

[¶68] Actual knowledge by the jail official is required to prove the claim. A jail official is not liable under the Fourteenth Amendment unless the official knows of facts demonstrating a substantial risk of suicide and the official actually infers the risk. Coleman, 349 F.3d at 538. A plaintiff, however, need not secure an official's admission that he or she knew of the risk. Id. at 538, n.3. Such an admission being nearly impossible to secure. Instead, the official's knowledge may be proven through circumstantial evidence. Id. Though obviousness of the risk is not the ultimate inquiry, obviousness may serve as circumstantial evidence that the officials actually knew of the risk. Id. at 538. A plaintiff may support an "actually knew" finding with sufficient "must have known" evidence. Id. at n. 3.

[¶69] If the facts raise a genuine issue whether the officials were aware of the risk of John's suicide, the next step is to evaluate their responses or measures to abate the risk. See id. Deliberate indifference is something more than negligence and mistake, but less than actual intent to harm—it requires proof of a reckless disregard of the known risk. Id. at 538-39. "Indifference" is apathy or lack of concern. Rellergert v. Cape Girardeau County, Missouri, 924 F.2d 794, 797 (8th Cir. 1991). "An obvious risk of a harm justifies an inference a prison official subjectively disregarded a substantial risk of serious harm to the inmates." Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007).

[¶70] In Rellergert, the Eighth Circuit Court of Appeals recognized deliberate indifference claims in inmate suicide cases arise under two broad fact patterns. The first occurs when the jail officials have failed to discover an inmate's suicidal tendencies. Rellergert, 924 F.2d at 796. The second occurs when, having discovered the tendencies, the officials have not taken adequate measures to prevent the suicide or attempted suicide. Id. The fact of suicide or attempted suicide is not ipso facto proof of deliberate indifference. Id. On the other hand, jailers do not get "one free suicide" pass. Woodward v. Correctional Med. Servs. of Illinois, Inc., 368 F.3d 917, 929 (7th Cir. 2004). "[W]here suicidal tendencies are discovered and preventive measures taken, the question is only whether the measures taken were so inadequate as to be deliberately indifferent to the risk." Rellergert, 924 F.2d at 796.

A. Discussion of Plaintiff's Claims

[¶71] The Complaint alleges Nurse Addy, Dr. Addy, and Sheriff Shipman acting under the color of state law knew of and disregarded an obvious and serious risk to John's health and safety by suicide while he was an inmate at MCCC. Doc. No. 1, ¶¶ 81-82. Diana asserts the individual Defendants acted with reckless disregard to John's rights and that he died as a direct and proximate result of their acts and omissions. Id. at ¶¶ 83-84. Defendants deny they were aware that John was "imminently suicidal" and assert they acted reasonably under the circumstances. Defendants argue summary judgment is appropriate because there is insufficient evidence that they knew John was suicidal or acted with deliberate indifference to John's risk of suicide.

[¶72] Before going further, the Court must address the argument that the individual Defendants did not know John was an "imminent risk of suicide." The Court's review of the caselaw does not suggest that an "imminent risk" of suicide is required. "Imminent" connotes a sense of immediacy, being close at hand, or ready to befall. See "imminent, adj." OED Online , Oxford University Press, June 2020, www.oed.com/view/Entry/91904. Accessed 29 June 2020. The cases, however, consistently frame the issue as whether the inmate is a "substantial risk" or an "excessive risk" of suicide. A.H. v. St. Louis County, Missouri, 891 F.3d 721, 726 (8th Cir. 2018) ("a plaintiff must show that a prison official ‘actually knew that the inmate faced a substantial risk of serious harm’ "); Coleman, 349 F. 3d at 538 (stating plaintiff must show the inmate presented a "substantial suicide risk"); Yellow Horse, 225 F.3d at 927 (stating deliberate indifference is established if the jailers knew of an "excessive risk" to the inmate's safety); Williams v. Kelso, 201 F.3d 1060, 1067 (8th Cir. 2000) (discussing the subjective knowledge requirement as whether the known conditions pose a "substantial risk" or "an excessive right to inmate health or safety"). So, while an "imminent risk" of suicide may also be a "substantial risk" of suicide, the Court is not inclined to additionally require that the risk of suicide be "imminent," particularly under the circumstances presented here.

i. Claim against Nurse Addy

[¶73] With regard to Nurse Addy, Diana alleges despite knowing of John's two suicide attempts in September 2013, his reports of increasing anxiety, and multiple sick call visits "she never determined whether he had present suicidal ideation or thoughts of self-harm." Id. at ¶¶47-48, 53, 56, 65. The Complaint alleges Nurse Addy was "deliberately indifferent to Nadeau's serious medical needs by failing to take adequate suicide precautions ... in the midst of a known and continuing mental health crisis ... [and] ignored critical information regarding the need for precautions, psychiatric evaluation and mental health treatment." Id. at ¶51. Diana also asserts "Nurse Addy exhibited deliberate indifference by not seeing [John] in response to his last attempt to get treatment for his acute mental health crisis" submitted on a sick call request dated October 22, 2013. Id. at ¶¶60-63.

[¶74] Nurse Addy was the contracted RN providing MCCC with non-emergency medical services. Doc. No. 83-6. By contract she was scheduled to be at the jail weekly on Wednesday and Fridays, but the evidence is she provided inmate sick call on Wednesdays with limited exceptions. The contract, among other things, required Nurse Addy to (1) assess and evaluate inmate medical complaints and medical condition at sick call, (2) review medical orders received by the Correctional Staff from other agencies should there be a question, or need for orders or approval from Dr. Addy, (3) secure medical information pertaining to inmates who require treatment or medical services while in custody, and (4) review inmates’ medications with Dr. Addy. Doc. No. 83-6. In exchange for her service, Nurse Addy was paid $3500 per month. Id.

[¶75] Nurse Addy has moved for summary judgment arguing she did not know John was an imminent suicide risk and was not deliberately indifferent to John's medical needs. Doc. No. 82, pp. 1, 12. Nurse Addy agrees John had a right to be protected from a known risk of suicide and to have his serious medical needs attended. Id. at p. 8. John's serious medical needs included his risk of suicide, anxiety and depression. Summary judgment will be denied if the evidence, viewed in the light most favorable to Diana, raises a material issue of genuine fact that Nurse Addy (1) knew of John's substantial risk of suicide and serious medical needs, and (2) was deliberately indifferent to those risks. Once an official knows of a substantial suicide risk, the Fourteenth Amendment requires the official take reasonable measures to abate the risk. Coleman, 349 F.3d at 538.

[¶76] Several reasons preclude summary judgment for Nurse Addy. First, the Court concludes Diana has raised a genuine issue of material fact regarding Nurse Addy's knowledge of John's substantial risk of suicide. Nurse Addy was aware John came into the facility with a self-inflicted neck wound. Her sick call note dated September 25, 2013 indicates he had stitches to the right side of his neck from a self-inflicted laceration. Doc. 83-5, p. 4. Furthermore, her notes reflect a discussion with John that he wanted to go to a psych ward, but she informed him he needed to go through his attorney and the courts because she and Dr. Addy were not able to order a "psych evaluation."¹⁴ Id. at p. 5. On September 25, 2013, John also reported to his mother he told Nurse Addy he was suicidal during sick call, and she responded he would "have to deal with it." Doc. No. 101-6, call # 20120925, 182338. Though Nurse Addy denies that conversation with John took place, this is question for the factfinder, not the Court on a motion for summary judgment.¹⁵ Coleman, 349 F.3d at 539.

14 Contrary to Nurse Addy's advice that John could only pursue a psychological evaluation through his lawyer, Nurse Addy, herself, could have ordered such an evaluation, particularly since she facts indicate he was an open client at West Central. Nurse Addy's incorrect statement demonstrates her lack of knowledge or lack of training in MCCC's policies and procedures.

15 Nurse Addy's hearsay objection to the Court considering this statement at the summary judgment stage is denied. Many exceptions to hearsay exist and the Court declines to make evidentiary rulings at this stage.

[¶77] Next, Nurse Addy admitted she knew John inserted feces into his neck wound, which required him to be taken to the St. Alexius ER for treatment and evaluation. Though Nurse Addy did not think this was a "real suicide attempt," the medical instructions issued by Dr. McCullough at his September 25, 2013 discharge state he was evaluated for suicidal ideation and needed to be placed on suicide precautions. Doc. No. 93-10. These instructions became part of John's medical file at MCCC, which is maintained by Nurse Addy, and which she was responsible to review by contract. Despite this knowledge, Nurse Addy admits she did not ask whether he was feeling suicidal or had suicide ideation during any of John's sick calls, ostensibly because she was not qualified to ask those questions.

[¶78] Furthermore, Nurse Addy was aware of John's numerous and consistent complaints throughout October 2013 regarding his anxiety, depression, and medications not working. See Doc. No. 83-3, p. 4 ("Is mostly concerned about his anxiety as his[blood pressure] is higher [with] ? anxiety.... Pt. on anxiety /depression meds at present by Dr. Addy however he wants more"); Doc. No. 83-5, p. 9 (reporting Pt. complains of ? anxiety, needs help with meds; feeling very anxious -- awaits West Central appt.); p. 10 (John writes "can we talk about my anxiety meds"); p. 11 (John requests sick call for "my blood pressure, my anxiety—I need more meds ... My depression"). John was requesting help for his mental health needs and, viewed in the light most favorable to Diana, Nurse Addy's response was to simply let him wait until the November 22, 2013 appointment with Dr. Capan at West Central.

[¶79] Importantly, Nurse Addy testified she did not think John was faking his need for stronger medications. Doc. No. 83-2, p. 25, pc. 83. Nurse Addy testified she knew he needed stronger medications because he was withdrawing from methamphetamine. Id. But she did not think they could fill mental health medications until after he was seen by Dr. Capan. Id. She testified they could give him the medications that he came in on "[b]ut anything stronger was out of our control." Id. at p. 26, pc. 85. This statement is curious because she admits, and the records reflect that on at least one occasion Dr. Addy prescribed a new medication and changed dosages for John's anxiety medications. Nevertheless, she told John he would have to wait until his appointment with Dr. Capan at West Central Human Services in mid-November 2013.

[¶80] The evidence also demonstrates John's anxiety, depression, and medication complaints remained consistent and did not appreciably change during his detention from September 18, 2013 to his attempted suicide on October 25-26, 2013. The evidence adduced by Diana is sufficient to raise a material issue of fact regarding Nurse Addy's knowledge of John's substantial risk of harm by suicide, and more particularly his risk of harm by not addressing his continuing complaints of anxiety, depression, and the need for stronger medications. A jury could further conclude that she was deliberately indifferent to this risk by telling him "he would have to deal with it," pushing off his anxiety and depression medication concerns until his appointment with Dr. Capan on November 22, 2013, and refusing to ask about suicidality.

ii. Claim Against Dr. Addy

[¶81] Diana's claim against Dr. Addy is similar to those against his wife, Nurse Addy. She alleges "Dr. Addy never saw Nadeau despite knowledge of his serious medical needs," and was "deliberately indifferent to Nadeau's serious medical needs by failing to take adequate suicide precautions for Nadeau as he was in the midst of a known and continuing mental health crisis." Doc. No. 1, ¶51. Diana contends Dr. Addy "ignored critical information regarding the need for precautions, a psychiatric evaluation and mental health treatment." Id.

[¶82] Dr. Addy had a contract with Morton County to act as the Health Care Administrator at the MCCC and assist the County in providing medical services required by inmates in custody. Doc. No. 95-3, p. 2. Paragraph 3 of his contract specifically states, "Dr. Addy shall act as the [MCCC] Health Care Administrator and shall perform the duties of that job description as set forth in the [MCCC] Policies and Procedures Manual except that he shall not provide psychiatric and dental care." Id. at ¶3 (emphasis added). Dr. Addy was required to provide routine, non-emergency medical services including initial health care appraisals, routine medical evaluations, testing diagnosis and routine treatment for inmates during their incarceration. Id. at ¶4. The contract recognized Dr. Addy was a family practitioner and did not hold himself out as a specialist in any other field, nonetheless he agreed to consult with specialists from time to time as necessary for the circumstances of each inmate. Id. Additionally, Dr. Addy agreed to "refer inmates to specialists in various fields for observation, diagnosis and treatment as is dictated by the reasonable and prudent practice of medicine and the particular situation of each inmate." Id. In exchange for his services, Dr. Addy was paid $1,000 a month for his services in addition to customary fees for testing, supplies, and certain emergency care. Id. at ¶7.

[¶83] Despite these contractual requirements, Dr. Addy denied knowing he was the Health Care Administrator, testified he was never called the Health Care Administrator, and did not know what it meant to be the Health Care Administrator at MCCC.¹⁶ Doc. No. 95-1, p. 9, pc. 18-20. Dr. Addy denied inmates like John were his patients and testified that inmates did not have a right to the same level of medical care as non-incarcerated individuals. Id. at p. 17, pc. 51. Dr. Addy testified he had no responsibility for the jail and the jail knew that. Id. at pc. 20.

16 Despite Dr. Addy's apparent lack of awareness of his position as MCCC Health Care Administrator, his signature appears on the contract appointing him to that position. Doc. No. 95-3. He is also paid for the position pursuant to the contract. Id.

[¶84] According to Dr. Addy, he was being paid to "[b]e the coroner and see patients that had no insurance." Id. He explained he would generally see MCCC inmates only if they were brought to his private clinic. Id. at p. 10, pc. 21-22. Rarely, Dr. Addy would go to MCCC when his wife, Nurse Addy, was out of town, but this happened only on one occasion in 2013 that he could recall. Id. at p. 8, pc. 15-16. Dr. Addy never examined or personally saw John at any time during his detention. Id. Furthermore, Dr. Addy testified he would refuse to see an inmate with mental health issues, which begs the question how he could possibly fulfill his duty to refer inmates for specialized care, including psychiatric care, if he refused to see them. See id. at p. 11, pc. 25-26.

[¶85] Dr. Addy was aware that John had suicidal tendencies because Dr. McCullough called him on September 26, 2013 after treating him for putting feces in his neck wound. Doc. No. 95-1 p. 15, pc. 43-44. Dr. Addy recalled Dr. McCullough described this as a "bizarre experience" and she had never seen anyone put stool in a wound. Id. Dr. McCullough told Dr. Addy John needed to be put on suicide precautions. Id. This recommendation was consistent with the discharge instructions Dr. McCullough issued on September 26, 2013. See Doc. No. 93-10. Dr. Addy, however, did not feel obligated to follow those instructions because Dr. McCullough "[had] no right to tell me or anybody" that John needed to be on suicide precautions. Doc. No. 95-1, p. 16, pc. 45. He further denied knowing what "suicide precautions" were and stated John was "already under probably a lot closer than suicide precautions were ever meant to be by being in jail." Id. at p. 23, pc. 70; p. 34, pc. 120. After Dr. McCullough's call, Dr. Addy admitted "it crossed [his] mind that John was mentally ill" and "he was certainly trying to get attention." Id. at p. 24, pc. 79-80. But it did not cross his mind to go see him. Id. at p. 32, pc. 111-12. Dr. Addy testified he did not meet with John because he's not a psychiatrist and did not "see little cuts." Id. at p. 24, pc. 79-80.

[¶86] Dr. Addy argues Diana cannot show he knew John was suicidal because it is undisputed that he never examined or met with John. Dr. Addy attempts to wield his failure to see John at any point during his detention as both a sword and shield, but the attempt to do so is unavailing.¹⁷ Dr. Addy's decision not to see John despite the information he had does not immunize him from liability.¹⁸ His knowledge is not dependent upon whether he personally saw and interacted with John but may be demonstrated through the usual ways of proving knowledge, including circumstantial evidence. Coleman, 349 F.3d at 538. Additionally, the obviousness of John's risk of self-harm may serve as circumstantial evidence that Dr. Addy knew John presented a substantial suicide risk. Id.

17 In response to a very unusual incident, where Dr. Addy knew an inmate had a self-inflicted neck wound and inserted feces into it, Dr. Addy made no efforts to personally follow up with John. Moreover, Dr. Addy blatantly disregarded and discounted Dr. McCullough's concerns—questioning whether the jail even had to follow her discharge instructions and denying that he had any obligation to do so and did not follow up with any other officials at the jail. Id. at p. 16-17, pc. 45-50. This appears to be consistent with Dr. Addy's generally dismissive attitude toward MCCC inmates, who he believed were not entitled to the same level of care of patients in his clinic. Id. at p. 17, pc. 51.

18 What is significant about Dr. Addy's decision not to see John is that it is evidence of deliberate indifference. Hayes v. Snyder, 546 F.3d 516, 524-26 (7th Cir. 2008) (doctor's actions and testimony could support an inference he was hostile and dismissive to the inmate's needs and therefore deliberately indifferent); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir. 1991) (evidence that medical staff treated the inmate not as a patient, but as a nuisance could support a finding of deliberate indifference).

[¶87] Dr. Addy admits that Dr. McCullough contacted him after the feces incident to discuss John. Doc. No. 95-1, p. 15, pc. 43-44. During that call, Dr. McCullough expressed her concern over this "bizarre" behavior that she had never before seen. Id. She informed Dr. Addy John should be put on suicide precautions. Id. These facts coupled with Dr. Addy's knowledge that John had a self-inflicted neck wound are sufficient to establish that Dr. Addy knew of John's suicidal tendencies and behavior. MCCC was a small jail, and his wife, Nurse Addy, was responsible for sick call there. Dr. Addy admitted that they would talk about many things, including the jail inmates, as husband and wife. Nurse Addy saw John several times for consistent complaints of his increasing anxiety and needing to have medicines reevaluated. Her records reflect discussing these issues with Dr. Addy. Nurse Addy was aware John needed stronger medications because he was withdrawing from methamphetamine. Doc. No. 83-2, p. 25, pc. 83. A reasonable inference can be drawn that as a licensed physician Dr. Addy would have known this as well. These facts provide a basis for inferring that Dr. Addy was also aware of the substantial risk of harm, including suicide, to John by not addressing his medication needs.

[¶88] At the summary judgment stage, the evidence need only raise a genuine issue of material fact that Dr. Addy was aware John was a substantial risk of harm by suicide. The Court concludes sufficient evidence exists to raise a question of fact for the jury whether Dr. Addy knew or must have known John was a substantial risk of suicide, and that he was deliberately indifferent to the risk.

iii. Claim Against Sheriff Shipman in his Individual Capacity

[¶89] Sheriff Shipman, as sued in his individual capacity, is able to assert the defense of qualified immunity.¹⁹ "Qualified immunity shields government officials from liability in a § 1983 action unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known." Rogers v. King, 885 F.3d 1118, 1121 (8th Cir. 2018) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Qualified immunity applies unless (1) the evidence, viewed in the light most favorable to Diana, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Coleman, 349 F.3d at 538.

19 Nurse Addy and Dr. Addy were independent contractors with Morton County, not employees, and have not asserted qualified immunity as a defense.

[¶90] The parties agree there is a clearly established Eighth and Fourteenth Amendment right for inmates and detainees to be protected from deliberate indifference to a substantial suicide risk. See Rellergert, 924 F.2d at 797 ("[W]e conclude that the law is clearly established that jailers must take measures to prevent inmate suicides once they know of the suicide risk"). The law is still unsettled, however, as to what those measures must be. Id. Each case necessarily turns on its own peculiar facts and circumstances. Id.

[¶91] Sheriff Shipman may not be held liable under § 1983 for the unconstitutional acts of his subordinates on a respondeat superior theory. Lenz, 490 F.3d at 995. "The Eighth Circuit has made clear that the ‘knowledge’ component of a deliberate indifference claim is unique to each official, and unless a supervisor is personally involved in or tacitly authorizes an employee's conduct, a supervisory official cannot be held liable for any other person's misconduct." Harvey v. County of Ward, 352 F. Supp.2d 1003, 1011 (D.N.D. 2005) (Hovalnd, J.) (citing Williams v. Kelso, 201 F.3d 1060, 1067 (8th Cir. 2000) ).

[¶92] Plaintiff argues Sheriff Shipman knew of the risk to John because he (1) admitted he likely reviewed John's September 18, 2013 booking reports, which indicated John arrived with a self-inflicted neck wound ; (2) knew John attempted suicide while in custody on September 25, 2013 by stabbing at his neck wound and filling it with his own feces; (3) attempted to gather more information regarding the feces incident; (4) spoke to Nurse Addy about John's complaints of anxiety and anxiety medications; (5) spoke to John about his anxiety and medications; (6) knew John was scheduled to be seen by West Central's psychiatrist; and (7) more than likely reviewed John's kites for sick call requesting help with anxiety, depression, and medications. Doc. No. 99, p. 35.

[¶93] The Court accepts these facts for purposes of analyzing the qualified immunity claim. Nevertheless, even giving the Plaintiff the benefit of all inferences, there is insufficient evidence to raise a genuine issue of material fact that Sheriff Shipman knew or must have known that John was a substantial risk of suicide or that he failed to reasonably respond to the information that he had available. "[K]nowledge is a matter of degree and the Fourteenth Amendment requires different responses depending on an official's knowledge level." Coleman, 349 F.3d at 539.

[¶94] Sheriff Shipman was aware of Nurse George's finding that John denied suicidal ideation during her assessment on September 30, 2013.²⁰ He further testified he specifically discussed her findings and conclusions with Attorney Grosinger. Doc. No. 93-14; Doc. No. 88-7, p. 9, pc. 155-56. Shipman could not be certain but agreed that generally he would have been involved in the decision to move John to general population after receiving Nurse George's email report concluding that John was inappropriate for State Hospital placement. Doc. No. 88-7, pp. 8-10, pc. 151, 157, 159.

20 Material issues of fact exist whether Nurse Addy and Dr. Addy were aware of Nurse George's findings and conclusions.

[¶95] Thereafter, no evidence demonstrates Sheriff Shipman knew John was at an excessive or substantial risk of suicide. Sheriff Shipman denies that John expressed thoughts of suicide or self-harm to him, and no-one expressed to him that John was in danger of harming himself. Doc. No. 88-7, p. 10, pp. 159; p. 13, pc. 171. Sheriff Shipman also testified that if staff had information an inmate was expressing suicidal ideation, he would expect it to be shared with other staff and himself. Id. at pc. 152-54. But no one did so. While those denials standing alone are not dispositive, there must be some evidence that supports a reasonable inference Sheriff Shipman had actual knowledge John was at a substantial risk for suicide to raise an issue of fact for the jury. Cf. Coleman, 349 F.3d at 539 (noting that Rule 56 may not be used to resolve credibility issues where the evidence supports a reasonable inference the jail official knew of the risk). But, unlike the correctional officers, Sheriff Shipman was not on the jail floor directly overseeing and supervising the inmates. Unlike Nurse Addy, Shipman did not see John for sick calls when he consistently requested stronger medications to help for his anxiety and depression. Unlike Doctor Addy, there is no evidence he discounted the reports of a fellow physician who called to expressly discuss John's need for suicide precautions and was deliberately indifferent to John's medical or mental health needs.

[¶96] The evidence shows Shipman met personally with John on October 23, 2013 to discuss his sick call request from the previous day. Sheriff Shipman recorded John's November psych appointment was out of their control. See Doc. No. 83-5, p. 11. When John spoke about his conversation with Shipman to his mother on October 25, 2013, he did not report telling the Sheriff he was suicidal or had thoughts of harming himself. Doc. No. 101-6, call # 20131023 184310. Rather John said he spoke to Shipman about being denied medical services for his blood pressure, depression and anxiety. Id. John recounted that Shipman responded those concerns had already been addressed, but John denied that his blood pressure and anxiety had been addressed. Id. John recounted that Shipman said he would speak with the nurse about his blood pressure and obtaining medication for him. Id. An inference can be drawn that this follow-up conversation took place because when Nurse Addy saw John on October 25, 2013, she recorded contacting the DOC about John's blood pressure medications. Doc. No. 83-5, p. 13.

[¶97] Furthermore, Sheriff Shipman was not at MCCC the evening of October 25, 2013, and the knowledge of the COs from that evening cannot be imputed to him. Kelso, 201 F.3d at 1066. One could reasonably conclude based on this evidence that Sheriff Shipman knew John felt he was being denied medical services, but the evidence does not raise a reasonable inference that Shipman knew John was suicidal or at risk for hurting himself.

[¶98] The Court further concludes the steps Sheriff Shipman took were reasonable in response to the circumstances and his actual knowledge. Sheriff Shipman's actions do not demonstrate he was deliberately indifferent to John's complaints about his medical treatment. When John alerted Shipman to his complaints on October 23, 2015, Sheriff Shipman responded. For these reasons, the Court concludes Sheriff Shipman is entitled to qualified immunity.

III. CLAIMS AGAINST MORTON COUNTY

[¶99] Diana also brings claims against Morton County and Sheriff Shipman in his official capacity. A claim against the Sheriff in his official capacity must be treated as a claim against Morton County. Brewington v. Keener, 902 F.3d 796, 801 (8th Cir. 2018).

[¶100] In a section 1983 action, a political subdivision, like Morton County, may only be held liable for constitutional violations that result from a policy, custom, or practice of the county. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The policy, custom, or practice must evince a deliberate indifference toward the constitutional rights of the inmate. A.H., 891 F.3d at 728. Governmental liability may attach from (1) an official policy that is itself unconstitutional, (2) an unofficial custom constituting a continuing, widespread, persistent pattern of unconstitutional misconduct by the county employees, or (3) a deliberately indifferent failure to train or supervisor employees that causes an employee to violate an inmate's constitutional rights. Id.; Corwin v. City of Independence, MO, 829 F.3d 695, 699-700 (8th Cir. 2016). Regardless of which theory of liability is alleged, the policy, custom, or lack of training must be the moving force behind the violation of an inmate's constitutional rights. A.H., 891 F.3d at 728 ; Corwin, 829 F.3d at 700.

[¶101] The Complaint here alleges Morton County, through Shipman, tolerated and promoted a custom of failing to provide for the well-being of MCCC inmates, particularly protecting inmates from the risk of suicide. Doc. No. 99, p. 44. Morton County argues there is no evidence Shipman or Morton County were deliberately indifferent through policy, customs, practices, or want of training their COs. Doc. No. 91, p. 37. Morton County claims it had robust suicide, psychiatric, and medical policies in place and that the CO received adequate suicide training. Id. They argue summary judgment is appropriate because Plaintiff will not be able to prove their policies and training were constitutionally inadequate. Id. at 37-38.

[¶102] In opposition, Diana specifically claims Morton County erected artificial barriers for inmates attempting to access psychological services because (1) the policies provided inmates could obtain mental-health services, but requests for mental health assistance went through Nurse Addy and she would not assess suicidality or ask questions about suicidal ideation because one had little experience with mental-health care; (2) though contracting with the Addys for medical services, each believed they were not responsible for mental-health care, and in fact Dr. Addy's contract specifically excluded psychiatric services, leaving a gaping hole at the jail with regard to mental-health services available to inmates; (3) Sheriff Shipman and Nurse Addy enforced a custom and practice, contrary to MCCC's official policies, of requiring an inmate to obtain a court order before an inmate could obtain a psychiatric evaluation or care;²¹ (4) failing to train the COs to ask follow up questions during bookings to elicit details regarding prior suicide attempts and suicidal ideation;²² (5) failing to train on recognizing signs of mental illness and instead expecting CO to use their "common sense;" and (6) failing to follow MCCC's official policies for suicide precautions, like well-being checks every 15 minutes and having approval to remove an inmate from suicide precautions. Doc. No. 99, pp. 44-46.

21 Though the Morton County Defendants assert the COs knew a court order was not required by policy, this fact is besides the point. It was Nurse Addy, not the COs, who would have scheduled a mental health examination and she believed that a court order was required for a psychiatric evaluation.

22 The medical screening form used at booking had a question for past attempts of suicide but did not contain any follow up questions or questions about current suicidal ideation. Doc. No. 83-4, pp. 7-8. The inmate health history and physical form used by Nurse Addy was completely devoid of any questions regarding prior suicide attempts or current thoughts of suicide. See Doc. No. 83-3.

[¶103] Plaintiff's allegations of deliberate indifference against Morton County blend theories of failure to follow and enforce official policies and failure to train jail staff on those policies. Failure to follow policies may be evidence of deliberate indifference to a detainee's medical needs but is not per se deliberate indifference. Luckert v. Dodge County, 684 F.3d 808, 819 (8th Cir. 2012) ("Failure to follow written procedures does not constitute per se deliberate indifference."); Woodward, 368 F.3d at 929 ("For all intents and purposes, ignoring a policy is the same as having no policy in place in the first place."). A plaintiff may show a government entity's deliberate indifference through the lack of training or inadequate training brought on by inadequate policies or customs. Harvey, 352 F. Supp.2d at 1012. The Court concludes the evidence raised by Plaintiff to support the Monell claim against Morton County is sufficient to survive judgment. See Monell, 436 U.S. at 691, 98 S.Ct. 2018.

[¶104] First, though MCCC had policies and procedures for obtaining mental health care for inmates, Nurse Addy and Dr. Addy either did not know of or did not follow those policies. The County accepted a contract with Dr. Addy that excluded psychiatric services, and this allowed Dr. Addy to seemingly "wash his hands" of any responsibility for inmate concerns addressing mental health. Though Nurse Addy's contract did not specifically carve out mental health care, she believed she had no responsibility to ask about suicidality and enforced a practice of requiring a court order to obtain a psychiatric evaluation, which was contrary to the actual policy but consistent with Sheriff Shipman's similar belief that a court order was required. Moreover, there was consistent testimony that Nurse Addy could schedule mental health services with West Central for inmates who were open patients. John was an open patient with West Central, but Nurse Addy still told him he needed a court order because neither she nor Dr. Addy could order a psychiatric evaluation. Such evidence supports a claim for either a practice or custom that evidences a deliberate indifference to mental health needs by MCCC. It further supports a claim that MCCC was deliberately indifferent to ensuring that its medically contracted staff knew, understood, and followed the relevant policies.

[¶105] Additionally, there is sufficient evidence that correctional officers too failed to follow important policies. While MCCC by policy required approval of the Captain to remove an inmate from suicide watch, the evidence here is clear the policy was not followed. Nor were there any specific criteria or guidelines to follow for releasing inmates from suicide watch, which would have been imperative since the evidence suggests John was removed from suicide watch by CO Cherrey without Captain Psyck's approval or any input from MCCC's medical team. COs further failed to consistently follow the requirements for timely jail rounds.

[¶106] Closely tied to failure to follow policies, is the issue of whether MCCC failed to provide necessary training to its staff. Although the correctional officers at MCCC had suicide prevention training either through prior experience or at the training academy, the evidence supports an inference that MCCC did not provide any additional or refresher training sessions to officers on suicide prevention or detection. The evidence shows correctional officers were expected to review some of the policies twice yearly, but no evidence has been provided that the suicide prevention policy was one of them. In fact, though MCCC submitted evidence that COs reviewed other MCCC policies and procedures twice yearly, no such similar record was produced with regard to the suicide prevention policy. Furthermore, as discussed above, there was no requirement Dr. Addy and Nurse Addy review the pertinent policies for suicide nor is there any evidence they did so. In fact, as noted above, Dr. Addy denied being familiar with MCCC's policy manual and freely admitted that he would not have read MCCC's policies even if they had been provided to him. Doc. No. 95-1, p. 14, pc. 38-40. This was particularly problematic here since both Dr. Addy and Nurse Addy were demonstrably unfamiliar with important MCCC policies. [¶107] It is not enough to simply have a written suicide prevention policy if the facts raise a genuine question whether there is a pattern of disregarding the jail's policies or not enforcing the policies. In other words, having policies in place to protect inmates from the risk of suicide and to prevent custodial suicides is important, but the actual practices of the jail are critical in determining whether the County has been deliberately indifferent to a detainee's medical needs, including the risk of suicide. See Woodward, 368 F.3d at 928-29 (holding evidence of medical contractor's actual practices presented question for jury whether contractor had been deliberately indifferent to detainee's medical needs resulting in suicide). Though a single incident deviating from the policy is not sufficient, a widespread and persistent pattern of deviations from multiple policies may establish deliberate indifference. Brewington v. Keener, 902 F.3d 796 (8th Cir. 2018) (holding a single incident of excessive force by deputy sheriff was insufficient to serve as notice of a pattern of misconduct); Lenz, 490 F.3d at 996. ("as the number of incidents grows, and a pattern begins to emerge a finding of tacit authorization or reckless disregard becomes more plausible.")

[¶108] The Court is satisfied the evidence raises a question of fact for the jury whether Morton County is liable for a pattern of failing to follow the policies, having practices and customs that substantially inhibited an inmate from obtaining mental health care, and failure to train and supervise correctional and medical staff regarding suicide, psychiatric, and medical policies in place.

[¶109] To the extent that Plaintiff also claims MCCC's suicide prevention policy itself was grossly inadequate, contrary to the correctional standard of care, and deliberately indifferent to the risk of suicide, the Court is not unsympathetic. This line of attack, however, has been routinely foreclosed by prior Eighth Circuit case law concluding that a policy "cannot be both an effort to prevent suicides and, at the same time, deliberately indifferent to suicides." See A.H., 891 F.3d at 728-29 ; Rellergert, 924 F.2d at 797.

[¶110] MCCC's policy for "Suicide/Attempted Suicide Emergency" was that "staff will be constantly aware of the potential of suicides and attempted suicides ... [and] will take precautions to prevent the inmate(s) from endangering themselves while in custody." Doc. No. 89-2, p. 242. The policy instructs that specialized treatment is needed in all attempted suicides and "[p]rofessional evaluation, confinement, or treatment is to be sought by the Administrator for all inmates attempting suicide" in the facility. Id. at p. 244. As to suicide prevention, the officers were expected to be aware of and watch out for previous suicide attempts, suicidal preoccupation and talk; depression with guilt feelings, sleeplessness, loss of appetite, and constipation, and preoccupation with death. Id. at p. 242. Officers were directed to check the inmate's medical record information sheet for indications of mental, emotional, or physical instability, and the special management inmate sheet was to be used to document inmates expressing mental, emotional, or physical instability. Id. The policy instructed "[c]lose supervision and frequent inmate checks ... will aid in the prevention of suicides and attempted suicides." Id. at p. 243.

[¶111] While surviving the minimal requirements of constitutional muster, MCCC's suicide prevention policy was hardly a model for best practices or the "robust policy" to prevent suicides that Morton County claims. Recent Eighth Circuit cases detail much more extensive and detailed policies that provide specific guidance and processes to correctional officers. See, e.g., A.H., 891 F.3d at 728 (suicide policy required inmates, among other things, to be screened for suicidal ideations, plans and behavior; classified inmates into different risk tiers and mandated successively more stringent precautions for each tier; required precautionary status inmates to be housed with a cellmate and have status evaluated every three weeks; detailed extensive procedures for handling potentially suicidal detainees; and mandated annual employee training). Nevertheless, the standard is deliberate indifference and an inadequate suicide prevention policy, while not being optimal, still does not prove a constitutional violation.

[¶112] MCCC's suicide prevention policy is similar to the one found sufficient by the Eighth Circuit in Yellow Horse, 225 F.3d at 928-29. In Yellow Horse, the county's suicide prevention policy provided that during a new inmate's intake procedures, the inmate was to be screened for possible suicide indicators such as drug or alcohol abuse, mental illness, or other strange behavior. Id. Inmates who were already in jail and became suicidal could be placed on suicide watch by any officer but only a supervisor could remove an inmate from suicide watch and before doing so the supervisor would interview the inmate and review his records to determine if he had been eating, socializing, and engaging in activities. Id. Correctional officers were trained to note significant events such as death in the family, divorces, unfavorable court rulings which might trigger suicidal tendencies. Id. Finally, the policy was reviewed by the officers annually and also periodically by prison medical staff. MCCC's policy is not substantially different, and, therefore, this Court cannot conclude that MCCC's suicide prevention policy was deliberately indifferent to the possibility of suicide. See id.

CONCLUSION

[¶113] For the reasons explained above, Nurse Addy's Motion for Summary Judgment and Dr. Addy's Motion for Summary Judgment are DENIED . Doc. Nos. 81, 92. The Morton County Defendants Motion for Summary Judgment is GRANTED, in part, as to the individual claim against Sheriff Shipman and DENIED, in part, as to the claim against Morton County and Sheriff Shipman in his official capacity. Doc. No. 86.

[¶114] IT IS SO ORDERED.