Sowell v. Dominguez

TAMARRA SOWELL, Plaintiff, v. ROY DOMINGUEZ et al., Defendants.

No. 2:09 CV 47

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

March 27, 2017

OPINION AND ORDER

Defendants Southlake Center for Mental Health, Dr. Lee Periolat, and Manuel Barragan ("Southlake defendants," collectively) have moved for summary judgment. (DE # 143.) Defendants Officer Janice Hatton, Officer Linda Riley, Sergeant R. Starkey, and Sergeant Hubner ("Jail defendants") have also moved for summary judgment. (DE # 145.) Defendants Roy Dominguez and Bennie Freeman ("Lake County defendants") have also moved for summary judgment. (DE # 147.) As explained below, Southlake defendants' motion will be denied. Jail defendants' motion will be granted, in part, and denied, in part. Lake County defendants' motion will also be granted, in part, and denied, in part.

In addition, Southlake defendants have also filed a Rule 56 motion to strike portions of plaintiff's response to defendants' motion for summary judgment. (DE # 175.) That motion will be denied.

I. BACKGROUND

The facts discussed herein are either undisputed, or, when in dispute, resolved in favor of the non-moving party, plaintiff Tamarra Sowell. See Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). Sowell filed a complaint as "personal representative, Administrator for the Estate, and on behalf of the heirs of Adekunle Odumabo," who is deceased. (DE # 24 ¶ 1.)

A. Odumabo's Arrest and Arraignment on April 27, 2007.

On April 26, 2007, Odumabo was arrested by the U.S. Marshals Service on charges of violating the terms of his supervised release while facing federal fraud charges. (transcript United States v. Odumabo, 2:04-cr-0087-JTM-PRC, Apr. 29, 2007, DE # 149-3 at 2-3.) That same day, Odumabo appeared before Magistrate Judge Paul R. Cherry for arraignment and an initial hearing on the superceding indictment filed in that case. (Id.) During the hearing, Odumabo made several suicidal statements in open court, including the following:

- "If they like, they can just end my life right here in court instead of wasting the government's funding."

- "It is very unfortunate this thing happened. . . and I'm ready to give my life for it . . . Right now. It is worthless."

- "I would really like to just make my peace with the Lord, maybe by poisoning, by firing squad, whatever it takes."

- "I just want to get this life over with. I'm just done, I'm done."

- "I got to spend two years with my son. That's enough. . . You can take my life."

- "I wish I was dead . . . I'm willing to meet the lord."

(See id.)

In light of these statements, Judge Cherry ordered the U.S. Marshals to notify Lake County Jail that Odumabo had made several suicidal statements in the courtroom and that he should be appropriately monitored for a suicidal condition. (Id. at 15.)

B. Odumabo Placed on Suicide Watch at Lake County Jail

Odumabo was remanded into custody at the Lake County Jail (the "Jail") on the same day of his arraignment. (DE # 149-7.) The U.S. Marshals informed the Jail that Odumabo was suicidal and this was reflected in the notes of the intake nurse. (Id. at 3 ("Per paper from Marshals, Pt. is suicidal").) At around 5:30 p.m. that same day, Odumabo was interviewed by Patti Kerr, a Southlake crisis counselor. (Id.) Kerr recorded on Odumabo's chart that he "had stated in court in front of officers, 'kill me, shoot me, why waste tax payers money over a fraud charge.'" (Id.) She also noted that he currently denied having any suicidal thoughts. (Id.)

Kerr classified Odumabo as "MH5 Full Suicide Precautions,"¹ placed him on suicide watch, and referred his case to Dr. Periolat, Southlake's psychiatrist at the Jail. (Id.) On suicide watch, Odumabo was placed in a cell that was equipped with a surveillance camera, he was given a paper gown and paper blanket, and all sharpobjects, personal clothing and belongings were removed from his cell. (DE # 167-1 at 54-55.)

The following afternoon, Odumabo was visited by Manual Barragan, a "Crisis Intervention Specialist" who had been employed by Southlake at the Jail since 1989. (DE ## 149-7 at 3; 143-3 at 8.) Notwithstanding his title, Barragan was not a licensed mental health practitioner. (DE # 167-1 at 49-51.) Neither did he have a college degree or any formal mental health education. (Id.) He was, however, a "Certified Correctional Health Practitioner." (DE # 143-3 at 36.) The requirements for becoming a CCHP include passing a test and annually completing eighteen or more hours of continuing educational classes. (DE # 167-1 at 48.) Barragan also received informal on-the-job training by working under a licensed social worker at the Jail and the psychiatrist, Dr. Periolat. (DE # 143-3 at 9-10.)

Barragan interviewed Odumabo by speaking through an open slot in the door of Odumabo's cell. (DE # 167-1 at 15-16.) Barragan recognized that this manner of interviewing inmates could lead them to be less forthcoming given that "their business" could be overheard by other people. (Id. at 43.) Nevertheless, through the course of his interview, Barragan learned that Odumabo was angry about being in jail and in particular about being on suicide watch. (Id. at 15-16.) Odumabo confirmed the statements he had made in court, but contended that he had been misinterpreted as being suicidal. (DE # 149-17 at 13.) Barragan asked him if he had any thoughts of harming himself and Odumabo replied: "No. I just want to get off this floor. Let me getoff this floor." (DE # 167-1 at 17-18.) At this time, Barragan did not conduct a formal suicide risk assessment. Instead, Barragan noted that he was able to make a "no suicide contract" with Odumabo.² (DE # 149-7 at 3.)

C. Odumabo Removed from Suicide Watch

At the conclusion of the interview, Barragan conferred with Dr. Periolat regarding Odumabo's status on suicide watch. (DE # 167-1 at 27. ) Both offer competing characterizations of this consultation. According to Barragan, he simply relayed information to Dr. Periolat, who in turn made the decision to remove Odumabo from suicide watch. (See id. at 27-33.) Meanwhile, Dr. Periolat described the decision as a "joint recommendation" to which he assented. (DE # 167-8 at 50; id. at 42-43 ("My understanding of this [medical report] is that I agree with the fact that they put him on full suicide precautions and that I agreed that they took him off . . . . To me this means that I agree with the decision, not necessarily that I gave it to them.").)

Dr. Periolat's time at the Jail was limited to an average of 2-4 hours per week, during which time he managed a monthly case load that could exceed 100 inmates. (DE ## 167-1 at 40; 167-8 at 17; 167-5 at 12-16.) As such, he considered his role as being akin to a "consultant" (DE # 167-8 at 4), and he leaned heavily on Southlake staff such as Barragan to make treatment recommendations for inmates. (Id. at 32-33, 52.)

Dr. Periolat was aware that Barragan was not a licensed clinician and that he did not have any formal training. (Id. at 6-7.) Yet, Dr. Periolat also believed from working with Barragan that he was well-qualified to make suicide assessment recommendations and had done so "hundreds" of times over the course of their professional relationship. (Id. at 52.) In Dr. Periolat's opinion, it is common for jail psychiatrists to rely on recommendations from staff such as Barragan, even though psychiatrists would not do so outside of the jail context. (Id. at 54.)

The upshot is that, on Friday, April 28, 2007, following Barragan's telephone conversation with Dr. Periolat, Odumabo was removed from suicide watch. (DE # 143-3 at 28.) This meant that he was allowed to have normal clothes and bedding, hot meals, and "range" time outside of his cell. (Id. at 29.) He was otherwise ordered to remain under observation in a camera cell until he met personally with Dr. Periolat the following week. (Id.)

D. Odumabo Hangs Himself in the Lake County Jail

On Monday, April 30, 2007, at 6:20 a.m., Odumabo was found dead in his cell, having hanged himself with his bed sheet. (DE # 149-7 at 6, 8.) The two preceding days had passed largely without incident. (See DE # 149 at 11-21.) However, at around 1:00 a.m., defendant Officer Hatton learned that Odumabo had covered up his cell camera. (DE # 167-14 at 2-5.) She ordered Odumabo to uncover the camera and he complied with her directive. (Id.) Hatton then resumed her post in the control booth, where shewas responsible for monitoring the rotating cameras on the fourth floor.³ (DE # 167-10 at 3.)

At the outset of her shift, Hatton was aware that Odumabo had been on suicide watch and that he was under observation in a camera cell for that very reason. (Id. at 9-11.) She also knew from her experience that an inmate covering his camera was potentially a sign that he will attempt to commit suicide. (Id. at 21.) A few hours later, Hatton observed Odumabo wearing his bed sheet around his shoulders, knotted in the front, in the fashion of a cape. (Id. at 22-23.) She was also aware that an inmate could use a bed sheet to harm himself. (Id. at 7.) However, Hatton did not consult any fellow officers or notify any medical personnel of Odumabo's behavior. (Id. at 25.)

Hatton remained on watch over the next few hours, during which time she and another officer made routine rounds and observed Odumabo dozens of times. (DE # 149-12 at 50.) Odumabo was observed sleeping. (DE # 149-26 at 6.) At another point, he asked Hatton what time it was and she told him. (DE # 149-21 at 33-34.) He was served breakfast around 4:45 a.m., asked for, and received, an extra carton of milk. (DE # 149-26 at 6-7.)

However, not long thereafter, he again covered up the camera to his cell. (DE # 167-10.) This time, however, it went unnoticed. Thus, it is not clear when he covered up his camera and how long he was out of surveillance. It was during this interval thatOdumabo took his own life. He was discovered by an officer making the rounds at 6:20...