Dolihite v. Maughon

United States Court of Appeals,

Eleventh Circuit.

No. 94-6343.

Michael Leroy DOLIHITE, Individually and as Father and Next

Friend of David Michael Dolihite; Joyce Mary Dolihite,

Individually, Plaintiffs-Appellees,

v.

Robert MAUGHON, M.D., Deceased, By and Through Mary Fay VIDEON,

as Executrix of the Estate of Robert Maughon, M.D.; Royce G. King,

Individually; R. Emmett Poundstone, III, Individually; Anthony R.

Dykes, Individually; Bradley Mazick, Individually; Karen Jurls,

individually; Andrew McBride, Individually; Chester Jenkins,

M.D.; Medical Money Management, Inc., Defendants-Appellants,

The Alabama Department of Mental Health; Eufaula Adolescent

Center; Neuropsychiatry Associates, P.C.; Medical Management,

Inc., Defendants.

Jan. 23, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-92-H-1398-N), Truman M. Hobbs,

District Judge.

Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.

ANDERSON, Circuit Judge:

The appellants in this § 1983 action argue that the district

court erred in denying them summary judgment on the basis of

qualified immunity. We affirm the district court's denial of

summary judgment as to one of the appellants, Karen Jurls. We

reverse the district court's order as to the remaining appellants;

we hold that they are entitled to summary judgment on qualified

immunity grounds.

On February 17, 1991, the Baldwin County Juvenile Court,

having adjudged David Dolihite in need of supervision, ordered

David committed to the Eufaula Adolescent Center ("Eufaula"), a

facility of the Alabama Department of Mental Health and Mental

Retardation ("ADMHMR"). David was not admitted to Eufaula until

almost a year later, on January 13, 1992. He was fifteen years

old. Approximately seventy days after his arrival at Eufaula,

David hung himself. Although he was resuscitated, the injury he

sustained during his suicide attempt left him severely

brain-damaged.

David's parents, individually, and David's father, as his next

friend ("the plaintiffs"), brought this § 1983 action against

various mental health professionals and administrators working for

or under contract with ADMHMR. The individual defendants include:

Bradley Mazick, Ph.D., Eufaula's clinical director; Karen Jurls,

a Eufaula social worker; Andrew McBride, a licensed psychologist

with Eufaula; Medical Money Management, Inc., a private

corporation under contract with ADMHMR to provide psychiatric

1

services to Eufaula; Drs. Robert Maughon and Chester Jenkins,

psychiatrists in the employ of Medical Money Management, Inc.;

Anthony Dykes, Eufaula's director; Emmett Poundstone, ADMHMR

Associate Commissioner for Mental Health; and Royce King, ADMHMR

Commissioner.

The Dolihites allege that the defendants violated David's

substantive rights under the due process clause of the Fourteenth

Amendment set forth in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct.

1

During the course of this litigation, Dr. Maughon died.

After this event, the plaintiffs amended their complaint

substituting the name of Mary Fay Videon, the executrix of his

estate for Dr. Maughon's name. For the sake of simplicity and

brevity we will refer to Dr. Maughon with the understanding that

our holding applies to the now-named defendant, Mary Fay Videon.

2452, 73 L.Ed.2d 28 (1982),2 i.e., his right to reasonably safe

conditions of confinement, freedom from unreasonable bodily

restraints, and such minimally adequate training as might be

required to ensure safety and freedom from restraint. Id. 457 U.S.

at 315-17, 102 S.Ct. at 2458-59. Discovery was completed. The

defendants all moved for summary judgment on qualified immunity

grounds. The district court denied their motions. Dolihite v.

Videon, 847 F.Supp. 918 (M.D.Ala.1994). The defendants-appellants

3

brought this interlocutory appeal. We have jurisdiction.

2

Although Youngberg involved a civilly committed mentally

retarded person, this circuit has interpreted the Youngberg

holding to apply to involuntarily, civilly committed mental

patients. See, e.g., Wooten v. Campbell, 49 F.3d 696, 701 (11th

Cir.1995) ("In Youngberg..., the Court extended the Estelle

analysis holding that the substantive component of the Fourteenth

Amendment's Due Process Clause requires the state to provide

involuntarily committed mental patients with such services as are

necessary to ensure their "reasonable safety' from themselves and

others."); Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir.1994)

("In Youngberg, the Court created the general legal principle

that persons who are involuntarily committed to state mental

institutions have a right to safe conditions, freedom from bodily

restraint, and a right to minimal training.")

3

Neither party challenges our jurisdiction under the recent

Supreme Court opinion, Johnson v. Jones, --- U.S. ----, 115 S.Ct.

2151, 132 L.Ed.2d 238 (1995). After careful review, we conclude

that we have jurisdiction of this appeal. In Johnson, the only

argument made on appeal by the public official seeking qualified

immunity was that the district court erred in concluding that

there was a genuine issue of fact as to the official's

involvement in the act. The act itself was a violation of

clearly established law. The Court noted that this "evidence

insufficiency" issue was different from the qualified immunity

issue held to be immediately appealable in Mitchell v. Forsyth,

472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Several

"countervailing considerations" persuaded the Court to decline

extending the rule of immediate appealability to include

"evidence insufficiency" issues. Johnson, --- U.S. at ----, 115

S.Ct. at 2158.

In Ratliff v. DeKalb County, Georgia, 62 F.3d 338 (11th

Cir.1995), this court addressed an issue similar to that in

Johnson v. Jones. After accepting jurisdiction and

resolving one claim for qualified immunity, the court

addressed the public officials' claim of qualified immunity

with Note 3—Continued respect to Ratliff's claim of gender

discrimination. The public officials' only argument with

respect to this claim of qualified immunity was that the

record did not support any discriminatory intent on their

part. Id. at 341. This court, noting that discriminatory

intent was a necessary element of the underlying

constitutional tort, declined to review the district court's

determination that there was a genuine issue of fact as to

whether appellants acted with discriminatory intent. Like

the nonreviewable issue of fact in Johnson—i.e., whether the

appealing public official was actually involved in the

allegedly unconstitutional beating—the issue of fact on

appeal in Ratliff was also a predicate factual element of

the underlying constitutional tort. Also like Johnson,

Ratliff involved an "evidence insufficiency" issue. See

also, Mastroianni v. Bowers, --- F.3d ----, 1996 WL 17032

(11th Cir.1996) ("Insofar as appeals from denials of summary

judgment relate to "factual disputes' or "insufficiency of

evidence' regarding plaintiff's claim, this court lacks

appellate jurisdiction."); Babb v. Lake City Community

College, 66 F.3d 270, 272 (11th Cir.1995) ("An order

determining the existence or non-existence of a triable

issue of fact—the sufficiency of the evidence—is not

immediately appealable.").

Unlike Johnson and unlike Ratliff, the primary argument

of each appealing public official in this case is that a

reasonable public official could have believed that his or

her actions were lawful, in light of clearly established law

and the information possessed by each official. Anderson v.

Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97

L.Ed.2d 523 (1987). This argument raises the core qualified

immunity issue and is, therefore, immediately appealable

under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

L.Ed.2d 411 (1985), and Johnson.

With respect to several subissues relating to several

of the appellants, in order to evaluate the core qualified

immunity issue presented by each appellant, we have

identified precisely the relevant actions of the appellant

and the relevant information possessed by each, of course,

taking all reasonable inferences in favor of Dolihite. We

are confident we have jurisdiction to do this. Cf. Anderson

v. Romero, 72 F.3d 518, ---- (7th Cir.1995) ("[The issue] is

whether in 1992 the constitutional right of a prisoner in

[plaintiff's] position ... to be free from the specific acts

that the defendants are alleged to have committed was

clearly established...."). As is apparent from the above

statement of the core qualified immunity issue, which

statement was paraphrased from Anderson, 483 U.S. at 639,

107 S.Ct. at 3039, it is necessary to examine the precise

actions of each appellant and the precise information

possessed by each appellant in order to determine whether a

reasonable public official could have believed that his or

her actions were lawful, in light of clearly established

law.

With respect to several of the mental health

professionals in the instant case, to determine what law is

clearly established, we must undertake a fact-sensitive

examination of controlling case law, particularly Greason v.

Kemp, 891 F.2d 829 (11th Cir.1990). We must then compare

the facts in such case law (which have been determined to be

in violation of the Constitution) with the precise actions

and the precise knowledge of the actors in this case. For

example, appellant Dr. Jenkins in the instant case is

comparable to the psychiatrist in Greason. Dr. Jenkins'

actions, and his knowledge at the time, must be identified

precisely and then compared to the actions and knowledge of

the psychiatrist in Greason. Only if the actions of Dr.

Jenkins, in light of his knowledge, are materially similar

to the actions and knowledge of the psychiatrist in Greason

can it be said that he could not have thought that his

actions were lawful. See Lassiter v. Alabama A & M Univ.,

Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en

banc).

Thus, the identification of the actions and knowledge

of each public official is part and parcel of the core

qualified immunity issue which is immediately appealable.

This inquiry is distinguished from the factual issues found

to be unreviewable in Johnson and Ratliff in at least two

respects. First, in both Johnson and Ratliff, the issue on

appeal involved a predicate element of the underlying

constitutional tort; by contrast, in this case, the issue

we address is the core qualified immunity issue—i.e.,

whether a reasonable public official could have believed

that his or her actions were lawful in light of clearly

established law and the information possessed. Second, in

both Johnson and Ratliff, the challenge on appeal involved

the sufficiency of the evidence to create a genuine issue of

fact; by contrast, in this case each appealing public

official raises the core qualified immunity issue identified

above.

Our conclusion that we have jurisdiction to identify

the precise actions and the precise knowledge of each

appellant is supported by the recent Eighth Circuit decision

in Reece v. Groose, 60 F.3d 487 (8th Cir.1995). In Reece,

the court held that it had jurisdiction "to examine the

facts as they were known to the government official in order

to determine whether clearly-established law would be

violated by his actions," id. at 489, Note 3—Continued

noting that Anderson required acceptance of such

jurisdiction. Numerous other courts appear to have

implicitly assumed such jurisdiction. See, e.g., Lennon v.

Miller, 66 F.3d 416, 422-26 (2d Cir.1995) (undertaking

review of "undisputed facts," i.e., record evidence

concerning the facts underlying plaintiff's claim, to

determine whether police officers' actions were objectively

reasonable); Rodriguez v. Phillips, 66 F.3d 470, 480-81 (2d

Cir.1995) (examining circumstances of prison to determine

whether it was objectively reasonable for the official to

believe plaintiff's administrative confinement did not

violate his constitutional rights); Buonocore v. Harris, 65

F.3d 347, 357 (4th Cir.1995) (noting that, to determine

whether actions violated clearly established law, the court

must examine the facts as alleged by plaintiff); Sanderfer

v. Nichols, 62 F.3d 151, 154-55 (6th Cir.1995) (appellate

court itself identified the relevant actions of the public

official, a nurse, in order to evaluate whether she was

deliberately indifferent to a pretrial detainee's medial

needs); Prosser v. Ross, 70 F.3d 1005, 1006 (8th Cir.1995)

(noting that the district court failed to indicate what

facts it believed to be in dispute and searching the record

for undisputed facts, and also noting that the limitation

imposed by Johnson "will sometimes make it difficult to

determine whether jurisdiction exists because deciding

whether an officer is entitled to qualified immunity

requires a "fact-intensive' inquiry"). We have found no

contrary authority.

Even if we are incorrect in our conclusion that the

identification of the precise acts and knowledge of each

appealing public official is part and parcel of the core

qualified immunity issue, we are satisfied that it would be

"inextricably intertwined" with the core issue, and thus

would be within our pendent appellate jurisdiction. See

Swint v. Chambers County Comm'n., 514 U.S. ----, ----, 115

S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995) (also suggesting

that pendent issue jurisdiction may exist where review of

the pendent issue is necessary to ensure a meaningful review

of the qualified immunity issue); Johnson, --- U.S. at ----

, 115 S.Ct. at 2159 (suggesting that pendent issue

jurisdiction of even evidence insufficiency issues may

exist). When an appealing public official presents the core

qualified immunity issue, we believe that we have pendent

appellate jurisdiction of other issues presented by such

official if the other issues are "inextricably intertwined"

with the core issue. See Blue v. Koren, --- F.3d ----, ----

n. 6, 1995 WL 759536 (2d Cir.1995) (finding that the

district court's ruling that a genuine issue of material

fact remained with respect to the qualified immunity issue

is reviewable under the court's pendant jurisdiction where

Mitchell v. Forsyth, 472 U.S. 511, 525-28, 105 S.Ct. 2806, 2815-16,

it is intertwined with the constitutional claim and is

necessary for a meaningful review of whether the district

court applied the appropriate standard). Every circuit to

address Swint 's reference to "inextricably intertwined"

issues has concluded that such pendent jurisdiction exists.

See, e.g., Kincade v. City of Blue Springs, 64 F.3d 389,

394-95 (8th Cir.1995); Kaluczky v. City of White Plains, 57

F.3d 202, 206-07 (2d Cir.1995); Moore v. City of Wynnewood,

57 F.3d 924, 930 (10th Cir.1995). In this case, even if the

identification of the precise actions and knowledge of each

appellant is not part and parcel of the core issue, as we

believe it is, the above discussion conclusively

demonstrates that the issue is "inextricable intertwined."

Indeed, it is absolutely necessary to identify precisely the

public official's actions and knowledge in order to resolve

the core qualified immunity issue.

Ordinarily, we might simply "take as given" the

district court's identification of each appellant's actions

and knowledge. See Johnson, --- U.S. at ----, 115 S.Ct. at

2159. However, with respect to the appellants in this case

other than Jurls, we cannot conclude that the district

court's identification of the actions and knowledge of each

appellant was adequate. The Supreme Court in Johnson

acknowledged that in such a circumstance, an appellate court

appropriately would have to undertake such identification.

Id. Cf. Rivera v. Senkowski, 62 F.3d 80, 84-85 (2d

Cir.1995) (examining record evidence where district court

failed to articulate an adequate factual basis upon which it

relied in declining to hold defendants immune from suit).

With respect to appellant Jurls, our identification of her

actions and knowledge is consistent with that of the

district court; in other instances, we have made the

identification more precise. Especially in the context of

health care professionals providing medical care, the core

qualified immunity inquiry is exceedingly fact sensitive on

both sides of the coin. On the side of the coin involving

the determination of clearly established law, it is

necessary to identify precisely the acts and knowledge of

the comparable actor in controlling cases. On the side of

the coin involving the actions of the appealing public

official, it is necessary, as we have demonstrated, to

identify precisely the actions and knowledge of the

appealing public official. As we stated in Lassiter v.

Alabama A & M University, Bd. of Trustees, 28 F.3d 1146,

1150 (11th Cir.1994) (en banc), a plaintiff cannot rely upon

general propositions or abstractions to demonstrate a

violation of clearly established law; rather, the facts of

the controlling precedent must be materially similar to

those in the instant case. Id.

86 L.Ed.2d 411 (1985).

This opinion will set out the background facts and the

relevant law and then address the entitlement of each defendant to

qualified immunity. In the summary judgment posture of this case,

we take all reasonable factual inferences in favor of the

plaintiffs below. However, the plaintiffs bear the burden of

proof. With respect to each appellant, we have taken the relevant

facts as identified by the district court and supplemented same as

necessary to evaluate whether a reasonable public official could

have believed that the actions of each appellant were lawful, in

light of the clearly established law and in light of the

information possessed by each appellant.

I. BACKGROUND FACTS

In February of 1991, the Baldwin County Juvenile Court

adjudged David Dolihite in need of supervision because of David's

4

problematic behavior at home and at school. The court placed

David in the custody of ADMHMR and instructed the Department to

return the child to the custody of his parents after he

successfully completed the Eufaula program. David continued to

reside, for the most part, with his parents until he was admitted

to Eufaula on January 13, 1992.5

4

At the time of the adjudication David had no juvenile

convictions or history of drug or alcohol abuse. But by March he

had been adjudged delinquent because he drew a knife on someone

at the Boys Home in Robertsdale where he was sent while waiting

to go to Eufaula. As a result of this incident he was again sent

home. When he violated his probation by misbehaving at school,

he was sent to the Hit Program, a Department of Youth Services

Program in Montgomery, Alabama.

5

The district court opinion indicates he was admitted on

this date in 1991, but this appears to have been a typographical

By January 23, 1992, David had been evaluated by three of the

defendants—Dr. Maughon, a psychiatrist, Jurls, a social worker, and

McBride, a psychologist.6 It was determined through these

evaluations that David had reported having attempted suicide,7 had

frequent suicidal ideations, was obsessed with writing poetry about

8

death, and had some family history of suicide. Appellees also

contend that behavior described in David's Baldwin County Mental

9

Health Department evaluation could be construed as psychotic.

After his initial Eufaula evaluations, David was assessed as giving

the "diagnostic impression of conduct disorder solitary aggressive

type."

Ten days after David's arrival, the psychiatrist Dr. Jenkins

error.

6

According to the record, appellant Mazick, the Eufaula

clinical director, did not see David at this point.

7

David told Jurls during her initial interview with him that

he had attempted suicide ten times, that he made his first

gesture in the fourth grade. He also described other attempts

which had occurred within two years of his arrival at Eufaula.

However, Jurls appears to have been skeptical about whether these

attempts ever occurred or at least the nature of the attempts.

"There is some question as to the actual pervasiveness of his

[suicidal] thoughts and whether or not they appear to be more

manipulative in nature or the result of significant clinical

depression." At least one suicide threat was documented in his

Baldwin County Mental Health Center Evaluation. David threatened

suicide in March of 1991 in a poem he gave to a former

girlfriend.

8

Evidence in the record below indicates that David's

grandmother committed suicide; however, the portion of David's

Eufaula record which discusses the incident gives the impression

that David's father's grandmother committed suicide.

9

"He denies hallucinations at this time; however, in a very

detached manner he describes looking in the mirror and seeing no

reflection, seeing hands beckoning him and seeing the ghost of

someone killed in a car wreck."

and appellants McBride and Jurls became members of David's

treatment team and, as such, signed David's master treatment plan.

The treatment plan noted, among other things, that David suffered

an active suicidal ideation and gesture problem, and it prescribed

weekly, thirty-minute individual therapy sessions as well as a

weekly forty-five-minute group session.

David exhibited self-destructive behavior while at Eufaula,

including making suicidal threats and gestures. The following

incidents occurred while David was at Eufaula and are documented in

his Eufaula record unless otherwise indicated. On January 26,

1992, a nurse treated David for a deep puncture wound in his left

wrist. David told the nurse that he "was going to cut his arm off

and kill himself." David was placed on continuous observation,

i.e., one-on-one observation, until the next day when Jurls, after

completing a suicide assessment, moved him to close observation

with one-hour checks.10 On the suicide assessment form, Jurls noted

that David's family did not have knowledge of David's past suicide

attempts and that David's self-reported past gestures could not be

confirmed. In David's Progress Notes, Jurls indicated that his

reported suicidal thoughts were intermittent and without genuine

intent.

10

The nurse apparently refused to give him medication for

pain. In his Progress Notes Jurls wrote, "He claimed to be upset

because Nursing Services did not provide treatment to a small

puncture on his hand." In her suicide assessment of David

conducted the following day, Jurls wrote: "I interviewed him on

1/27/92 and he appeared nondepressed and denied all suicidal

ideation. He was verbal and animated. David did admit to being

frustrated 1/26/92 10:30 pm and reported himself to having only a

fleeting thought of suicide." She then moved him from continuous

observation to close observation status and indicated that he was

to be checked every hour.

In David's Progress Notes dated February 4, Jurls indicated

that David had presented as extremely irrational during the

previous week; she added that he was not out of touch with

reality. On the afternoon of that day, David injured himself,

creating an ulcer one centimeter in diameter on his left wrist. On

February 13, a staff member reported that David wrote with a rock

on the security screen over his window, "Oh, God I want to die,

please take me or I'll commit suicide, Death, Suicide are the facts

of life." David was given work restitution for his behavior but no

additional therapeutic intervention, nor was he prescribed any

medications, and no suicide assessment form was completed.11

On February 18, David was talking to himself and advised a

nurse that he was talking "to a friend who told him what to do."

On February 24, a staff member found David sitting on the floor in

his room beside the figure of a star he had made of salt, cutting

into a sore on the back of his wrist with his belt buckle, and

allowing blood to drip onto the star. David told the staff member

he was a devil-worshipper. David later that day wrote the staff

member a note which indicated that he was not talking because the

devil told him not to. On March 2, Jurls indicated in David's

Progress Notes that he continued to enjoy the "shock value" of

talking about suicide.

On March 8 at about 2:45 p.m., David cut his arm with a piece

of metal. A staff member described the incident in David's

11

In Jurls' affidavit, she said that she performed a

suicidal risk assessment and that David denied suicidal intent;

however, there is no suicide assessment form in record with

respect to this incident.

Progress Notes: "When I arrived in the dorm he was standing in the

bathroom and his left arm in the sink and the H2O running, bleeding

profusely from a cut to his left arm...." David was taken to the

emergency room. The cut required ten stitches and, as indicated by

Jurls on David's suicide assessment form, was "fairly lethal due to

vertical, wide cut and possibility of loss of excessive blood."

Around 4:45 p.m. the same day, David removed the sutures with

his teeth. He told the Eufaula nurse that "he was going to kill

himself and he was not going to have sutures put in" and "would

remove them again." The nurse notified Dr. Jenkins about David's

behavior. Over the phone, Dr. Jenkins prescribed 25 mg of

Vistaril, a tranquilizer, and authorized the use of soft

restraints. David was taken to the emergency room again. Jurls

ordered David placed on continuous, i.e., constant, observation.

The next day Jurls completed a suicide assessment form on

David. According to her notes, David denied suicidal intent,

psychotic symptoms, and feelings of depression, but admitted

self-injurious thoughts due to problems with peers. Although

David's act of cutting himself and pulling his sutures out on March

8 was apparently determined to be a suicidal gesture or attempt,

David was never seen by the psychiatrists or by Dr. Mazick nor was

his treatment plan altered.12 However, Jurls did change his status

12

The affidavits of John Fowler and Billy Kirby, two of

David's fellow Eufaula residents, also indicate that David was

placed in seclusion for removing his sutures. His records

indicate that he was secluded on March 9, but for failure to

follow staff instructions.

This is not the only incident for which David was

secluded. Before his injury, David was sent to seclusion

for a total of about 14 hours. It was apparently common

to close observation with fifteen minute checks. Thereafter, his

observation status was not changed again until the morning of March

24.

On March 15, David was secluded for "failure to follow rules,

bleeding on walls and defecating on floor" in the time-out room.

Once secluded, David continued to spit blood on the walls of the

seclusion area.

On March 18, David stuck a pencil in his wound of March 8. He

was again taken to the emergency room. Dr. Nixon, having treated

David twice for his self-inflicted wound of March 8, requested

David be evaluated by a psychiatrist. She wrote, "This child MUST

be evaluated for anti-psychotic medication."13 Jurls arranged for

David to see Dr. Jenkins the next day.

Dr. Jenkins examined David on March 19. His notes in David's

records state only the following: "This young man has been

engaging in self-destructive behavior. Case reviewed with

therapist and nurse. No current or past evidence of psychosis.

practice at Eufaula to place a disruptive child in various

forms of confinement, the milder version being dorm

restriction which apparently meant that a child could not

leave his dormitory or his dorm room except to attend

classes or meals. Staff members could also place children

in "time-out" which required children be confined in a

particular room with a staff member checking on them every

fifteen minutes. During his time at Eufaula, David was kept

in time-out for approximately 70 hours. Seclusion was a

more serious confinement, an extreme measure. Residents at

Eufaula were apparently secluded individually in a building

separate from the dormitories in one of three small rooms

resemblant of bare jail cells with concrete floors, no

furniture and no heat.

13

Dr. Nixon noted in David's file that the March 18 incident

was the third episode of self-mutilation which had come to her

attention (including the removal of his March 8 stitches).

MS: alert, oriented. Thought orderly. Affect indifferent.

Memory and intellect intact. This difficulty seems behavioral. "I

think I messed up and may be a little bit crazy.' " There is no

further indication in the record of what sort of assessment or

examinations were completed to render this conclusion. David's

treatment plan was not altered.

On Saturday, March 21, at 9:25 p.m., a staff member ordered

David placed in seclusion after David destroyed facility property,

threatened to cut himself with a piece of glass, and stated he was

going to hurt himself if he got the chance.14 While in seclusion,

David beat his head on a wall, cursed loudly and was described as

"totally out of control." The nurse on duty notified Dr. Maughon

over the phone about David's behavior. Dr. Maughon instructed the

nurse to administer 50 mg of Vistaril.

On Sunday, March 22, around 9:30 p.m., a mental health worker

restricted David to the time-out room for destroying facility

property.15 According to the time-out records completed by mental

health worker Allen Forte, David attempted to hang himself at 9:35

p.m. At 9:40 p.m. David was placed in seclusion. According to the

defendants, Forte did not inform his shift supervisor of this

incident, and the supervisor made no mention of it in his shift

14

The social worker on duty stated in David's Progress Notes

that David was secluded for failing to follow staff's directions,

threatening to do harm to himself, inciting a racial riot, and

causing disruption to therapeutic environment.

15

David had torn his closet door off its hinges and had

knocked a hole in it. David told the worker that he had mood

swings and felt like destroying something.

report.16 There is no evidence that the hanging incident was

mentioned in the shift report or that the clinical staff discussed

it at their March 23, morning meeting.

On Tuesday, March 24, at 8:45 a.m., Jurls met with David. The

Progress Notes indicate that the two of them discussed the previous

weekend, specifically David's destruction of property and

aggression. Neither in the Progress Notes themselves nor elsewhere

in David's record is it documented that Jurls knew about the

weekend hanging attempt.17 At that meeting she told David that the

treatment team had met the previous morning and had decided to give

David three days dorm restriction due to his behavior.

Her Progress Notes of March 24 also indicate that she had left

instructions for the dorm staff to take David off close observation

status on the morning of March 21 if March 20 had been uneventful.

According to the Progress Notes, the dorm staff did not receive

that order. Jurls renewed the order effective 1:20 p.m. on March

24.

Although David's records do not reveal that Jurls knew of the

attempted hanging, the plaintiffs presented evidence that Jurls did

know about the incident. A former Eufaula resident, John Fowler,

signed an affidavit stating:

16

The seclusion order indicated that the reasons for

seclusion were David's physical aggression toward staff and his

attempt to pull down a light fixture out of the ceiling. Samuel

Denson, another mental health worker, rather than Allen Forte

filled out the seclusion form.

17

Jurls did write in David's Progress Notes of March 24,

that he "continue[d] to resort to self-injurious behavior when

angered or frustrated" but this might have referred to his

behavior of March 19 (sticking the pencil in his wrist wound) or

his behavior of March 21 (threatening to cut himself).

I was in the time-out room on March 22, 1992.... David did

try to hang himself. Ms. Jurls knew this because the next

day, David and I talked with Ms. Jurls about it. Ms. Jurls

spoke to both of us together about David trying to hang

himself the night before. She knew David had tried to hang

himself and she confronted us together about it and David

admitted it in her presence and in my presence.

At 3:30 p.m. on March 24, after David went off close

18

observation, Dr. Mazick and David had a short discussion during

which Dr. Mazick, apparently not cognizant of David's

self-injurious behavior of the previous weekend, told David that he

had not engaged in self-injurious behavior for several days and

that he "did not see that [David] needed to remain on close

observation."

Shortly afterwards, at 4:10 p.m., David was found hanging in

his dormitory room closet by a shoestring. Emergency CPR was

performed and David was resuscitated. He was then sent to

Children's Hospital in Birmingham where it was determined that he

suffered severe hypoxic brain damage. According to the district

court, as of March, 1994, David remained in serious condition and

functioned at the level of a three-year old.

The record reflects that during David's seventy days at

Eufaula, he received three and one half hours of individual therapy

with Jurls, a social worker, and six hours of group therapy. He

was secluded for a period of fourteen hours, on dorm restriction

for ten days, and in time-out for sixty-four hours. He was only

seen by a psychiatrist twice, once upon admission and again on

18

According to Mazick's affidavit, David expressed an

interest in speaking with Mazick in a seemingly chance encounter

which occurred while David was in the hall outside Jurls' office.

March 19. Dr. Mazick, the staff's Ph.D. psychologist, saw David

briefly on March 24.

In the affidavits of Billy Kirby and John Fowler, as well as

the testimony of Allen Forte, the plaintiffs presented evidence

that at Eufaula there was gang activity, violence between

residents, and abuse by the staff. John Fowler stated that David

came to his room once to hide from gang members, that he told Jurls

that gang members were threatening David, and that staff allowed

gang members to mistreat other residents. He also claimed that the

Eufaula staff hit and cursed at the residents,19 that he had seen

staff members hit David and another resident on numerous occasions,

and that he personally told Dykes, Jurls, and Dr. Mazick about

those incidents. He also asserted that staff members put the

residents in time-out and seclusion for inappropriate reasons. In

sworn testimony, Allen Forte, a former Eufaula employee, testified

that he had seen supervisors strike children and that a

twelve-year-old resident had been sexually abused twice by other

residents.

The appellees also introduced the Eufaula FY 91-92 Advocacy

Report as evidence that violence was rampant at Eufaula. That

report indicated that thirty-three complaints were filed by

residents. However, the report itself does not indicate the

20

substance of more than a few of those complaints. The report

19

He also stated that once a staff member threw Billy Kirby,

another resident, down the stairs.

20

The report did recount the complaints behind some of the

investigations. One resident reported being kicked in the ribs

by another resident; another resident reported being hit in the

face by a staff member; a third resident reported that a staff

focuses instead on whether the investigations of those incidents

were adequate. It concluded that they were not and that staff

needed training on how to conduct proper investigations.

II. DISTRICT COURT'S DECISION

The district court, in denying the defendants' motions for

summary judgment, stated that under the Eighth Amendment "[i]t is

well settled that state governments possess "a constitutional

obligation to provide minimally adequate medical care to those whom

they are punishing by incarceration,' " Dolihite v. Videon, 847

F.Supp. 918, 926 (M.D.Ala.1994) (citing Harris v. Thigpen, 941 F.2d

1495, 1504 (11th Cir.1991)). The court noted that persons

subjected to involuntary civil commitment are " "entitled to more

considerate treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish.' " Id.

(citing Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452,

2461, 73 L.Ed.2d 28 (1982)). Thus, the court concluded that Romeo

"

made it clear that the Fourteenth Amendment due process

requirements imposed on state officials who are entrusted to care

for those who have been civilly committed to state institutions are

considerably more rigorous than those imposed under the Eighth

member had threatened to beat him up; a fourth investigation

revealed that a resident might have been secluded as a means of

punishment; and a fifth resident requested a referral to the

nurse for treatment of an injury but was not seen until the

following afternoon. Some investigation accounts were included

as attachments to the Advocacy Report. In one a resident

reported a mental health worker hit him in his mouth; another

indicated that a staff member had been cursing at the residents;

a third concerned the incident in which a resident reported being

kicked in the ribs by another resident; and, a fourth described

an incident in which a resident reported a bruise on his right

eye.

Amendment which are applicable to prisoners." 847 F.Supp. at 926.

The district court, in elucidating the law to be applied, set

forth the rule established in Romeo, which held that "liability may

be imposed only when the decision by the professional is such a

substantial departure from accepted professional judgment,

practice, or standards as to demonstrate that the person

responsible actually did not base the decision on such a judgment."

457 U.S. at 323, 102 S.Ct. at 2462. The district court also cited

the Eleventh Circuit cases Waldrop v. Evans, 871 F.2d 1030 (11th

Cir.1989), and Greason v. Kemp, 891 F.2d 829 (11th Cir.1990), for

the proposition that it is also well settled that officials in

charge of the care of prison inmates are liable if put on notice of

suicidal tendencies and fail to take reasonable precautions to

prevent suicide. The court reasoned that this rule would

necessarily apply to those trained to care for emotionally

disturbed youths given the Romeo rule that due process rights of

the civilly committed exceed the Eighth Amendment rights of the

criminally incarcerated.

With respect to Jurls, a social worker and David's primary

therapist, the district court focused on the Fowler affidavit which

indicated that Jurls knew about the March 22 attempted suicide.

The court also concluded that a jury could find that she did in

fact read the portion of David's record which indicated that he had

attempted to hang himself. Id. at 931-32. There being evidence

that she knew of the suicide attempt of March 22, but failed to

take steps to prevent David from attempting suicide, the district

court determined that our precedent under Greason dictated a

conclusion that her actions, taken in the light most favorable to

the plaintiffs, would amount to deliberate indifference thus

precluding summary judgment on qualified immunity grounds.

The district court denied the other defendants' motions for

summary judgment. All the defendants here appeal that court's

denial of their motion for summary judgment on qualified immunity

grounds. We first set forth the appropriate qualified immunity

analysis, and then we address the facts and law relevant to each

individual appellant's case.

III. QUALIFIED IMMUNITY

The denial of qualified immunity is a question of law to be

reviewed de novo. Swint v. City of Wadley, 51 F.3d 988 (11th

Cir.1995). Because this is an appeal from the denial of a summary

judgment motion, we must view the facts in the light most favorable

to the plaintiff below. Id.

The qualified immunity analysis requires the court to

determine whether a defendant violated clearly established

constitutional law.21 In Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court

explained that qualified immunity protects government officials

performing discretionary functions from civil liability if their

conduct violates no "clearly established statutory or

constitutional rights of which a reasonable person would have

known." Id. 457 U.S. at 818, 102 S.Ct. at 2738.

21

The first step of the analysis is to determine whether the

officials were acting within their discretionary authority.

Sammons v. Taylor, 967 F.2d 1533, 1539 (11th Cir.1992). That the

defendants were acting within their discretionary authority is

uncontested here.

Qualified immunity is intended to give officials the ability

to anticipate when their conduct may give rise to liability for

damages. Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034,

3042, 97 L.Ed.2d 523 (1987) ("Where [the qualified immunity] rule

is applicable, officials can know that they will not be held

personally liable as long as their actions are reasonable in light

of current American law."). A plaintiff must establish more than

broad legal truisms; he or she must demonstrate that the law fixed

the contours of the right so clearly that a reasonable official

would have understood his acts were unlawful. Id. at 639-640, 107

S.Ct. at 3039. Thus, "pre-existing law must dictate, that is,

truly compel (not just suggest or allow or raise a question about),

the conclusion for every like-situated, reasonable government agent

that what defendant is doing violates federal law in the

circumstances." Lassiter v. Alabama A & M University, Bd. of

Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc) (emphasis in

the original). Moreover, officials need not " "be creative or

imaginative in drawing analogies from previously decided cases.' "

Id. at 1150 (citations omitted).

In Anderson, the Supreme Court described the qualified

immunity analysis:

The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful ... but

it is to say that in the light of pre-existing law the

unlawfulness must be apparent.

483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted).

Our courts have applied an objective reasonableness test to

qualified immunity cases. In each circumstance, taking the facts

known to the particular defendant, "the relevant question on a

motion for summary judgment based on a defense of qualified

immunity is whether a reasonable official could have believed his

or her actions were lawful in light of clearly established law and

the information possessed by the official at the time the conduct

occurred." Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499,

1503 (11th Cir.1990).

As a general matter, under Romeo the involuntarily civilly

committed have liberty interests under the due process clause of

the Fourteenth Amendment to safety, freedom from bodily restraint,

and minimally adequate or reasonable training to further the ends

of safety and freedom from restraint. 457 U.S. 307, 102 S.Ct.

2452, 73 L.Ed.2d 28 (1982). In addition, Romeo established that

the involuntarily civilly committed were due a higher standard of

care than the criminally committed; persons subjected to

involuntary civil commitment are "entitled to more considerate

treatment and conditions of confinement than criminals whose

conditions of confinement are designed to punish." Id. 457 U.S. at

322, 102 S.Ct. at 2461. Thus, it follows from Romeo that, all

other circumstances being the same, actions of a mental health

professional which would violate a prisoner's Eighth Amendment

rights would also violate the due process rights of the

involuntarily civilly committed.22 An official violates a

22

This holding does not require that public officials " "be

creative or imaginative in drawing analogies from previously

decided cases' " in contravention to Lassiter. Lassiter, 28 F.3d

at 1150. The conclusion is set forth in the plain language of

Romeo and requires no analogies.

prisoner's Eighth Amendment rights when the official is

deliberately indifferent to the prisoner's serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976).

Although Romeo establishes that the involuntarily civilly

committed have certain due process rights and that those rights are

at least as extensive as the rights of the criminally

institutionalized, that broad legal truism is insufficient to

clearly establish the law for purposes of overcoming the

appellants' qualified immunity claims in this case.23 In

determining whether the appellants in this case are entitled to

qualified immunity, we must look at case law which sets forth the

contours of the due process rights recognized in Romeo. Because,

under Romeo, the due process rights at stake were at least

equivalent to the comparable Eighth Amendment rights of the

criminally committed, relevant case law in the Eighth Amendment

context also serves to set forth the contours of the due process

rights of the civilly committed.

We will address the facts relevant to each individual

appellant in light of the relevant case law. We must determine

whether that law clearly established the conclusion that a

reasonable official at the time of the appellant's actions, knowing

what the appellant knew, would have realized that those acts

violated David's constitutional rights.

23

Moreover, in Romeo, the Supreme Court did not decide

whether the facts of that case would amount to a violation of the

plaintiff's due process rights. Rather the Supreme Court

remanded the case for the lower courts to decide.

IV. THE APPELLANTS

A. Karen Jurls

As David's primary therapist, Eufaula social worker Jurls had

the most frequent contact with David during his time at Eufaula.

She conducted a social history on him when he was admitted; she

knew he reported having threatened and or attempted suicide before

his arrival; she was on his treatment team; she was assigned to

counsel him weekly for one half hour and to act as co-therapist

24

during his weekly group therapy session; she knew of David's

self-injurious or suicidal behavior while at Eufaula; she

conducted the two written suicide assessments in the record; she

contacted Dr. Jenkins when it was recommended that David be

evaluated for anti-psychotic medication; and, she maintained David

on close observation status for much of his time at Eufaula because

of the various incidents in which David threatened to commit

suicide or exhibited suicidal gestures. Most significantly, for

our purposes, the plaintiffs have produced evidence from which a

fact finder could conclude that Jurls knew that David attempted to

hang himself on March 22 25 but that she nevertheless took him off

of close observation status without taking any other measures to

protect his safety or otherwise meet his mental health care needs.

As the district court indicated, our precedent in Greason, 891

24

The record indicates that David's therapy did not occur as

often as prescribed.

25

There is a factual dispute as to whether or not David

attempted to hang himself on March 22, and also with respect to

Jurls' knowledge thereof. In the summary judgment posture of

this case, we take the reasonable factual inferences in favor of

the plaintiffs.

F.2d 829 (11th Cir.1990), is relevant. In Greason, an inmate

committed suicide while in the Georgia Diagnostic and

Classification Center ("GDCC"), a Georgia Department of Corrections

facility where the decedent was being held. The decedent's family

brought a § 1983 action, alleging that the mental health

professionals and administrators at the facility were deliberately

indifferent to the decedent's mental health needs in violation of

the Eighth Amendment. Calvin Brown, the mental health team leader

in charge of the inmate's (Greason's) care and one of the

defendants in that case, was denied summary judgment on qualified

immunity grounds. Brown knew that while at the facility Greason

had been experiencing feelings of despair and thoughts of suicide

and on one occasion had attempted to kill himself by tying

something around his throat. This incident had been reported to

Brown well before Greason's final suicide, not only by two inmates,

but also by Greason's parents who on a visit to the facility asked

Brown for his help with respect to the problem. Id. at 832 & n. 8.

Nevertheless, Brown did not notify the staff psychiatrist or put

Greason on suicide watch. The court concluded such conduct

violated the decedent's Eighth Amendment rights:

The question here is a narrow one: whether Brown's failure to

monitor Greason after having been warned by Greason's parents

and two inmates that Greason had tried to commit suicide

constituted deliberate indifference.

Where prison personnel directly responsible for inmate

care have knowledge that an inmate has attempted, or even

threatened, suicide, their failure to take steps to prevent

that inmate from committing suicide can amount to deliberate

indifference.

Id. at 835-36 (footnotes omitted). The court affirmed the district

court's denial of Brown's motion for summary judgment on qualified

immunity grounds concluding "that a reasonable person in Brown's

position would have known that his provision of care constituted

deliberate indifference to Greason's eighth amendment rights...."

Id. at 836.

The situation in this case is comparable to that of Brown in

Greason. Jurls admits that she knew of David's history of mental

illness, i.e., his suicide threats and attempts or gestures and his

self-injurious behavior. If a jury found that she knew of his

self-injurious behavior over the weekend beginning March 21,

especially the attempted hanging on March 22, Jurls' decision to

take David off of close observation on March 24 presents a

situation comparable to Brown's behavior in Greason. Like Brown in

Greason, Jurls failed to notify any of the psychiatrists or

psychologists available to her and failed even to continue the

protective measures already in place for David. Rather than

protecting David or seeking professional guidance, Jurls' alleged

behavior actually put David at greater risk of suicide. Thus, her

decision is comparable to the decision which was held to constitute

deliberate indifference in Greason.

Because the constitutional violation on such facts was clearly

established in Greason, we conclude that plaintiffs-appellees have

adduced sufficient evidence to support findings of fact which would

constitute a violation by Jurls of clearly established

constitutional rights. Thus, we affirm the district court's denial

of summary judgment with respect to Jurls.

B. Andrew McBride

McBride, a staff psychologist at Eufaula, conducted one of

David's initial evaluations and was on David's treatment team. His

primary contact with David appears to have been as co-facilitator

of David's group therapy sessions. McBride knew about David's

history and many of the incidents which occurred while David was at

Eufaula. The plaintiffs contend that McBride should be liable

because he failed to take action after David's hanging attempt.

However, the plaintiffs do not argue that McBride knew about

David's March 22 hanging attempt.26 Rather, they argue that his

failure to apprise himself of that information and to take action

to prevent David from doing further injury to himself in light of

that information constituted a constitutional violation.

The fact that McBride did not know about the hanging attempt

sets his situation apart from Jurls'. McBride indicated that

during Monday morning community meetings, the residential staff

would report to clinical staff what of importance happened over the

weekend. The plaintiffs allege that McBride saw the seclusion

report. McBride, however, testified that he read the March 23

Progress Note but was only "informed" of a seclusion report. The

Progress Notes recorded on March 23 indicated that on both March 21

and March 22 David was secluded, in part, for attempting to do harm

to himself. This information is substantially the same as that

which would have been available had he read the March 21 and March

26

The district court's opinion is not clear, but it may have

thought that McBride knew of the March 22 hanging attempt. 847

F.Supp. at 933 ("McBride did not perform a suicide assessment on

David at that time, despite his awareness of Mr. Forte's report,

McBride depo. at 28-32...."). However, our careful review of the

deposition reveals no suggestion that McBride knew of the hanging

attempt; indeed, McBride expressly disavows such knowledge. Nor

is there other evidence that McBride knew.

22 seclusion reports. Thus, there is no evidence McBride was

apprised of the hanging attempt, but he was on notice that David's

self-injurious tendencies persisted through the weekend.

McBride's failure to inquire further and seek out the record

for closer inspection should be considered in light of the fact

that the clinical staff not on duty on weekends apparently

regularly relied on the residential staff to report important

incidents occurring on weekends and that neither the residential

staff nor the portion of the record McBride reviewed indicated that

David's threats to do harm to himself involved a hanging attempt.

Also, the appellees do not assert that McBride knew about or took

part in the decision to take David off close observation.27 Without

knowledge of the March 22 hanging attempt and with no apparent role

in the decision to take David off close observation, we cannot

conclude McBride's failure to take action after the weekend of

March 21-22 constituted a violation of clearly established

constitutional law under Greason28 or other relevant Eighth or

Fourteenth Amendment case law.

Although the plaintiffs presented as evidence an affidavit

27

The fact that he did take part in putting David on dorm

restriction does not indicate that he took part in the decision

to take David off of close observation status; there is no

indication in the evidence presented and plaintiffs do not allege

that dorm restriction meant that a resident was automatically

taken off close observation.

28

The actions of Calvin Brown, the mental health team leader

in Greason, can be distinguished from McBride's actions here.

Brown took no measures to protect Greason or to seek appropriate

help for Greason. The evidence in the record indicates that, as

far as McBride knew, measures were being taken to protect David

from himself, i.e., David was on close observation status and was

being monitored every fifteen minutes.

from an expert which stated that Andrew McBride "failed to meet the

basic professional standards in the evaluation, assessment, and

treatment" of David, the affidavit does not with any specificity

indicate how McBride's evaluation and treatment of David failed to

meet basic professional standards. A conclusory affidavit of this

nature provides little support for the appellees' claim.

The Dolohites also allege that McBride should be liable

because he failed to recommend that David be transferred to another

facility even though he considered David actively suicidal and knew

that Eufaula's policies did not authorize admitting actively

suicidal patients. See Eufaula Adolescent Center Policy No. 3.47,

Admission Criteria, # 2.E. However, no cases hold that a

government official's violation of facility or department policy,

without more, constitutes a constitutional violation. See, e.g.,

Edwards v. Gilbert, 867 F.2d 1271, 1276-77 (11th Cir.1989),

modified, reh'g denied, Edwards v. Okaloosa County, 23 F.3d 358

(11th Cir.1994). Our case law does indicate that failing to

transfer or accommodate the serious health needs of a prisoner

could amount to a constitutional violation. In Howell v. Evans,

922 F.2d 712, 722-23 (11th Cir.1991), vacated as moot, 931 F.2d 711

(11th Cir.1991), reinstated by unpublished order as noted, 12 F.3d

190 (11th Cir.1994), this court concluded that a superintendent of

a correctional facility was not entitled to qualified immunity

under the following facts. The superintendent knew that an inmate

had an urgent need for a particular type of medical personnel.

After the denial of the superintendent's recommendation that the

inmate be medically released, the superintendent failed to seek the

needed personnel on his own initiative. Instead, he relied on the

medical administrator to seek funding for the personnel through the

regular budgetary process.

The case at bar is different from Howell. In Howell, the

facility medical staff indicated to the superintendent that the

"prisoner could not be treated under the then current conditions"

of the facility. In the case before us, the record indicates that

the Eufaula staff could have treated David. Even the plaintiffs'

experts do not contend that Eufaula was not equipped to treat

David. Rather, the expert affidavits simply point to deficiencies

in the actions of Eufaula's professional personnel.29

We conclude that the facts adduced by appellees fail to show

that defendant McBride violated clearly-established constitutional

law.

C. Medical Money Management, Dr. Chester Jenkins, and Dr. Robert

Maughon

1. The Medical Money Management Contract

Drs. Jenkins and Maughon were psychiatrists who, as employees

of Medical Money Management, Inc., were under contract with Eufaula

to: provide psychiatric services on a consulting basis, admit

residents, write initial treatment plans, determine patients'

admitting diagnoses, prescribe medications, perform medication

reviews, examine residents before discharge, provide expert

testimony in court, and provide twenty-four hour call coverage. As

physicians under contract with the state, the psychiatrists were

29

For instance, Dr. Abraham Halpern, the plaintiffs'

psychiatric expert, concludes that David should have received

psychiatric medication and more intensive therapy. Both options

were apparently available at Eufaula.

state actors subject to liability under § 1983. See West v.

Atkins, 487 U.S. 42, 55-58, 108 S.Ct. 2250, 2259-60, 101 L.Ed.2d 40

(1988); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703

(11th Cir.1985). Because they are individuals subject to liability

under § 1983, the psychiatrists are also entitled to raise

qualified immunity as a defense to liability.

The district court concluded that the psychiatrists, as

members of David's treatment team, had broad authority and

implicitly broad responsibility notwithstanding their allegedly

limited duties under the Medical Money Management contract.

Dolihite v. Videon, 847 F.Supp. at 930. However, only Dr. Jenkins

was on David's treatment team, and the fact that Dr. Jenkins was on

David's treatment team does not, in and of itself, indicate that he

had broader responsibilities than those set forth under the

contract. Significantly, appellees have not adduced evidence that

the psychiatrists had a duty to follow up on every patient at

Eufaula. The contract indicates that after a resident was

admitted, the psychiatrists were only obligated to follow up on

patients in order to perform medication reviews.30

The psychiatrists did have a duty to do intake evaluations,

initial diagnoses and initial treatment plans and to provide

psychiatric services when consulted. Thus it is incumbent upon us

to examine how each psychiatrist performed when called upon to

fulfill these duties.

2. Dr. Chester Jenkins

30

Although both Drs. Maughon and Jenkins prescribed

Vistaril, a tranquilizer, for David, the plaintiffs do not

contend that that prescription triggered the duty to follow-up.

a. Facts Relevant to Dr. Jenkins

Dr. Jenkins was the psychiatrist assigned to David's treatment

team. Although he did not conduct David's initial evaluation or

render the initial diagnosis, Dr. Jenkins signed David's treatment

plan in late January, 1992. The plan listed suicidal ideations and

gestures among David's primary problems and recorded Dr. Maughon's

diagnosis of "conduct disorder solitary aggressive type." David

next came to the notice of Dr. Jenkins on March 8, when a Eufaula

staff member notified him by phone that David had purposely cut his

arm, stated that he "want[ed] to commit suicide," and then

purposefully removed the stitches from the self-inflicted wound.

Over the phone Dr. Jenkins authorized the use of Vistaril, a

tranquilizer, and soft restraints, if necessary. Dr. Jenkins did

not follow up on the incident.

Then on March 18, after David stuck a pencil in the wound of

March 8, Eufaula staff again contacted Dr. Jenkins about David.

That day Dr. Nixon, the emergency room doctor who had also treated

David on March 8, indicated emphatically in David's medical records

that David needed a psychiatric examination.31 The next day, March

19, was the first day and the only time that Dr. Jenkins either saw

David or reviewed David's record. According to Dr. Jenkins, he

spent about one half hour with David. He conducted a "mental

status examination." Dr. Jenkins' notes of this examination, as

recorded in David's record, are cursory. Dr. Jenkins wrote that he

had reviewed David's case with David's nurse and therapist, that

31

She wrote: "MUST be evaluated by Psychiatrist for

antipsychotic medication...."

David had been engaging in self-destructive behavior, that there

was no current or past evidence of psychosis, that David was

"alert" and "oriented," that his thought was orderly, his affect

indifferent, and his memory and intellect intact. Dr. Jenkins

concluded, "This difficulty seems to be behavioral."

Although the scope of Dr. Jenkins' March 19 "mental status

examination" was not well-developed by the plaintiffs, it is

apparent from Dr. Jenkins' deposition that he formed the opinion

that there was no evidence of clinical depression, delusions, or

psychotic behavior. It was Dr. Jenkins' opinion that David was

exhibiting "non-suicidal self-destructive behavior," i.e., behavior

that was harmful but not life-threatening and behavior for which

there was some explanation. The explanation was that such behavior

was impulsive and related to things about which David was angry or

frustrated—i.e., David was using such behavior in a manipulative

fashion. Dr. Jenkins' ultimate opinion was that there was not a

need for psychotropic drugs and that David's problem was

behavioral.

b. Allegations Against Dr. Jenkins

The plaintiffs do not allege that Dr. Jenkins took part in the

decision to take David off close observation on March 24 or that

Dr. Jenkins had any contacts with David between the March 19

evaluation and David's March 24 suicide attempt. The plaintiffs do

allege that Dr. Jenkins failed to recognize David's obvious signs

of clinical depression and bipolar disorder and to diagnose him

accordingly. They contend that David's history of suicide threats

and his family history of suicide, his increasing episodes of

self-mutilation and mood swings should have led to that diagnosis.

They assert that Dr. Jenkins should have prescribed intense and

lengthy one-on-one therapy and antidepressant medication for David

and that the failure to do so was a total departure from

professional judgment.

The plaintiffs contend that Dr. Jenkins had the duty to make

such a diagnosis and recommend such treatment when he was consulted

on March 8 and then again when he was consulted on March 19. They

also assert that Dr. Jenkins failed to exercise professional

judgment when he did not see David on March 8. They argue that on

March 19, when he did see David, he failed to do an in-depth

evaluation or even an in-depth review of the record.32 They argue

that an in-depth review of the record would have revealed evidence

of David's serious mental illness illustrated by David's March 15

episode of bleeding and defecating on the walls of the time-out

room as well as other unspecified instances indicating serious

mental illness. The plaintiffs also cite Dr. Jenkins' cursory

notes on the examination as evidence that Dr. Jenkins did not do

any testing or in-depth evaluation. Finally, the plaintiffs

contend that Dr. Jenkins also failed to have the Ph.D.

psychologist, Dr. Mazick, see David for more in-depth testing.

c. Expert Testimony Against Dr. Jenkins

The plaintiffs presented expert medical testimony. Our

32

Apparently, both the plaintiffs and Dr. Halpern in his

expert affidavit are confused about which psychiatrist was

involved in the March 19 and March 21 incidents. The defendants

note that Dr. Jenkins, not Dr. Maughon, evaluated David on March

19 and Dr. Maughon, not Dr. Jenkins, prescribed the Vistaril

tranquilizer on March 21.

circuit has indicated that the testimony of medical experts can aid

the court in determining whether qualified immunity is appropriate

where allegations hinge upon the appropriateness of the actions of

medical professionals, including mental health professionals. See

Howell v. Evans, 922 F.2d 712, 722-23 (11th Cir.1991), vacated as

moot, 931 F.2d 711 (11th Cir.1991), reinstated by unpublished order

as noted, 12 F.3d 190 (11th Cir.1994); Greason v. Kemp, 891 F.2d

829 (11th Cir.1990); Waldrop v. Evans, 871 F.2d 1030 (11th

Cir.1989); Rogers v. Evans, 792 F.2d 1052 (11th Cir.1986). Such

expert medical testimony, making reference to specific deficiencies

in a defendant's treatment and specific medically accepted

standards might, in conjunction with the specific facts of a case,

persuade a court that the medical defendant's actions in the case

were clearly as great a departure from appropriate medical

standards as previous departures found unconstitutional in prior

cases—i.e., might persuade a court that a reasonable professional

in defendant's shoes would have known that his challenged actions

(or inaction) violated plaintiff's constitutional rights.33

The plaintiffs presented the affidavit of Dr. Abraham L.

Halpern, a certified and practicing psychiatrist. His affidavit

states that the psychiatrists' treatment of David was "a total

departure from professional judgment, practice or standards such

33

However, an expert opinion which is merely conclusory,

even if couched in the language of the relevant legal standard,

will be of little assistance to a court. See, e.g., Rogers v.

Evans, 792 F.2d 1052, 1062 n. 9 (11th Cir.1986) (approving lower

court's order striking affidavit of medical expert where the

affidavit was "phrased in conclusory terms without citing facts"

and concluding that the affidavit was "defective to create a

factual dispute.")

that it cannot be said that their treatment of David was based on

accepted professional judgment." However, Dr. Halpern's affidavit

suffers from several flaws.

First, Dr. Halpern was not careful to discuss Dr. Maughon and

Dr. Jenkins separately. Instead, Halpern often referred to "their

treatment" of David. And, when he did discuss them individually,

Dr. Halpern confused the two doctors' roles in their treatment of

David; his affidavit indicates that Dr. Maughon examined David on

March 19 and Dr. Jenkins prescribed Vistaril for David on March 21,

when in fact it was Dr. Jenkins who performed the examination on

March 19 and Dr. Maughon who received the call on March 21. Also,

Dr. Halpern assumes that the psychiatrists under contract with

Eufaula had a duty to manage and follow up on each patient. As

discussed, supra, Medical Money Management's contract did not call

for that34 nor does any other part of the record indicate that the

consulting arrangement or accepted medical standards required

monitoring and follow-up on any patients aside from those patients

receiving medication.35 The terms of the agreement indicated that

the psychiatrists could depend on the staff mental health

professionals to bring to their attention problems indicating a

need for psychiatric intervention. Finally, Dr. Halpern's

34

Rather, the contract required Drs. Maughon and Jenkins to

conduct the initial evaluation, to prescribe medication, to

follow up on patients receiving medication, to be available for

consultation, and to consult on an as-needed basis.

35

There is another error in Dr. Halpern's affidavit—as part

of his consideration of the March 19 events, Dr. Halpern assumes

that the psychiatrist should have called the emergency room

doctor. There is no substantiation for this claim in his

affidavit or in relevant case law.

affidavit was not helpful in establishing the degree to which Dr.

Jenkins had allegedly departed from accepted medical standards.

Dr. Halpern's affidavit does refer to three incidents which he

suggests indicated a need for more intensive intervention—the

February 18 incident in which David was found talking to himself,

the March 8 incident when David cut himself and removed the

sutures, and the March 15 incident when David was bleeding on the

walls and defecating on the floor of the time-out room. Dr.

Halpern expressly labels only one of these incidents as psychotic

behavior. He does not state why these incidents are so serious as

to require medication or more intensive therapy nor does he cite

authority for his conclusory suggestion that any doctor would

recognize these incidents as calling for more intrusive

intervention. In the last analysis, Dr. Halpern's affidavit is

conclusory and as such is of relatively little value in our

interpretation of the facts of this case. Thus, we are essentially

left with little help from the expert in comparing the facts of

this case with binding precedent which sets forth the contours of

our law in this area.

This is not to say that Dr. Halpern's conclusions are wrong.

Rather it is to say that his affidavit does not aid us in our

qualified immunity analysis. His affidavit is not the kind of tool

which indicates with any specificity the degree to which the doctor

here strayed from the realm of accepted professional judgment. The

fact that Dr. Halpern used the phrase "total departure from

professional judgment, practice or standards, such that it cannot

be said that their treatment of David was based on accepted

professional judgment of psychiatric practice" does not foreclose

summary judgment when qualified immunity has been properly raised.

The affidavit must help the court to discern whether the purported

departure was so egregious that, in light of the reported cases, a

reasonable professional would have recognized that his behavior

amounted to a constitutional violation.

d. Application of Prior Case Law

Our analysis here will focus first on the plaintiffs'

assertion that Dr. Jenkins failed to adequately assess and treat

David after the March 18 incident when David stuck a pencil in his

March 8 self-inflicted wound. Dr. Jenkins evaluated David on March

19, the day following Dr. Nixon's note in David's record indicating

the need for a psychiatric evaluation for anti-psychotic

medication.

Relevant to our inquiry into Dr. Jenkins' behavior on March 19

is the fact that Dr. Jenkins indicates that he reviewed David's

record prior to examining him. Thus, taking the facts in the light

most favorable to the plaintiff, Dr. Jenkins would have known of:

1. David's previous suicidal threats and gestures;

2. David's grandmother's suicide;

3. Dr. Maughon's initial diagnosis of David, "conduct

disorder, solitary aggressive type;"

4. David's January 26, 1992, deep possibly self-inflicted

puncture wound to his left wrist and his statement that he was

going to "cut his arm off and kill himself;"

5. The February 2, 1992, incident when David wrote, "Oh, God

I want to die, please take me or I'll commit suicide, Death,

Suicide are the facts of life." on the security screen in his

dormitory room;

6. The February 4, 1992, self-inflicted injury to the left

wrist and the Progress Note of the same day indicating that David

had been presenting as irrational;

7. The February 18, 1992, incident when David was talking to

himself and telling a staff nurse that he was talking "to a friend

who told him what to do;"

8. The February 24, 1992, incident when David performed some

allegedly Satanic ritual in his room, inflicted further injury to

left wrist, after which he told a mental health worker that the

devil told him not to speak;

9. The March 8, 1992, incident when David cut his arm with a

piece of metal in an apparently suicidal gesture, and after which

he pulled out the stitches and refused new stitches;

10. The March 15, 1992, incident when David bled on the walls

and defecated on the floor of the time out room; and

11. The March 18, 1992, incident when David re-injured his

left wrist by sticking pencil in it and was again sent to the

emergency room.

In addition to these facts, Dr. Jenkins would have known that

Dr. Maughon had not identified a psychosis, that David's suicidal

threats and gesture problem were supposedly being addressed during

his weekly therapy sessions, and that David's family could not

confirm that he had attempted suicide before coming to Eufaula.

The record also indicates that Jurls questioned whether David

experienced genuine suicidal intent,36 and that whenever he was

explicitly asked about it David consistently denied having suicidal

intent, a specific suicidal plan, or being depressed.

Having set forth the extent of Dr. Jenkins' knowledge of

David at the time of the challenged treatment, we now turn to this

circuit's prior cases to determine whether or not the departure in

this case is as egregious as those cases, or more so. It is clear

that Dr. Jenkins' departure in this case is not as egregious a

departure as that of the psychiatrist in Greason v. Kemp, 891 F.2d

829 (11th Cir.1990). In that case, the psychiatrist—without

conducting a mental status exam and without reading an inmate's

record—discontinued the inmate's antidepressant medication. Before

entering prison, the inmate in Greason had been diagnosed as

schizophrenic with suicidal tendencies and had been treated at a

county mental health center with anti-depressant medication because

he had contemplated suicide. Both the inmate's former therapist at

the county facility as well as a psychiatrist from the Georgia

Department of Human Resources sent letters or reports recommending

that the inmate be maintained on his anti-depressant medication.

Both of these letters were in the inmate's file. The psychiatrist

in Greason discontinued the medication without instructing that the

inmate be monitored for the adverse effects of discontinuing the

medication.

36

For instance, at one point she considered his threats to

be for "shock value" and at another she questioned "the actual

pervasiveness of his thoughts and whether or not they appear to

be more manipulative in nature." In the first suicide

assessment, Jurls noted that David's family did not have

knowledge of David's past suicide attempts and that David's

self-reported past gestures could not be confirmed.

Similarly, the instant facts are not as egregious as those

37

presented in Rogers v. Evans, 792 F.2d 1052 (11th Cir.1986).

There the court concluded that deliberate indifference to medical

needs might be established under the circumstances—i.e., a

reasonable jury could find that in response to the justified

criticism of past inappropriate medical care, the psychiatrist had

simply withdrawn medical care altogether. Id. at 1061. The court

also considered the fact that the defendant-psychiatrist had

treated the inmate's psychotic symptoms with placebos and the fact

that the doctor had used Prolixin, a treatment which was arguably

grossly incompetent.

A third case, Waldrop v. Evans, 871 F.2d 1030 (11th Cir.1989),

preceded Greason and involved the same facility and the same

psychiatrist. In that case an inmate pled guilty but mentally ill

to armed robbery. Id. at 1032. When the inmate arrived at the

Georgia Diagnostic and Classification Center, a Georgia Department

of Corrections facility, in October of 1984, he had been diagnosed

as manic depressive and was taking lithium. Id. On October 18,

1984, he was evaluated by the defendant psychiatrist who concluded

that his psychiatric problems were in remission and withdrew the

drugs. Id. at 1034. A staff physician recommended another

interview because Waldrop was suffering from insomnia, nightmares,

and nausea. The psychiatrist saw him again on October 27, 1984,

but did not place him on medication. On November 1, 1984, Waldrop

slashed his forearm, although the psychiatrist was not notified at

37

This case did not address the qualified immunity issue.

Nevertheless, it sets forth binding precedent and as such serves

to elucidate the contours of the law in this area.

the time. Id. at 1032, 1034. On November 4, 1984, Waldrop gouged

his left eye out and was taken to the hospital. Id. at 1032. Upon

his return from the hospital on November 8, 1984, the psychiatrist

examined Waldrop and placed him on two drugs but not on lithium,

the antidepressant drug he had previously been prescribed. Id. at

1034. The psychiatrist also ordered no emergency measures to

protect Waldrop. Id. at 1034. Later, at another facility, the

inmate cut his scrotum, losing both testicles, and so severely

damaged his right eye that he lost his sight in it. Id. at 1032.

Pursuant to expert medical opinion in evidence, the court held that

a jury could reasonably find facts which would rise to the level of

a violation of clearly established law.

It is fair to say that the self-injurious actions preceding

David's final injury in this case are not comparable to those in

Waldrop; Waldrop's gouging out his left eye clearly is a more

serious incident than the most serious incident in this case prior

to the March 24 hanging attempt, namely, the March 8 self-inflicted

wound. Waldrop is also different from this case in that Waldrop

had pled not guilty but mentally ill, had been diagnosed as manic

depressive, and placed on lithium, an antidepressant drug, all

before coming under the defendant's care. We are satisfied that

the defendant-psychiatrist's inadequate response to the symptoms in

Waldrop are not comparable to Dr. Jenkins' actions in this case.

In summary, we conclude that the facts adduced by plaintiffs

fail to show that Dr. Jenkins' actions38 were such a departure from

38

If Dr. Jenkins' actions on March 19, at which point he was

privy to several more incidents of David's self-destructive and

possibly psychotic behavior, did not violate clearly established

professional judgment that a reasonable professional in his shoes

would have known that his actions violated David's constitutional

rights. Plaintiffs' medical expert's testimony fails to establish

the degree of alleged departure. Plaintiffs have not adduced facts

to demonstrate that Dr. Jenkins' alleged departure from

professional judgment was comparable to that previously found to

constitute a violation of constitutional rights.

3. Dr. Maughon

We next address plaintiff's contentions with respect to Dr.

Maughon, the other psychiatrist under contract with Eufaula. Dr.

Maughon's involvement with David was limited to his initial

evaluation of him on January 23, 1992, and his March 21

prescription of Vistaril over the telephone. Evaluating Dr.

Maughon's actions in light of the facts then known to him, it is

clear that he had less information than Dr. Jenkins, and that his

actions are less suspect than those of Dr. Jenkins.

With respect to the initial evaluation, plaintiffs' expert,

Dr. Halpern, notes that David had a family history of suicide, had

made prior suicidal threats and attempts, and suggests that these

were "obvious signs of clinical depression and bipolar disorder."

Based on the foregoing, Dr. Halpern concludes that Dr. Maughon

"made no attempt to properly evaluate and treat David for these

obvious mental disorders." This cursory conclusion does not aid

the appellees here. First, Dr. Halpern's conclusion that David

should have been evaluated as clinically depressed with bipolar

constitutional rights, it follows that his alleged failure to

take action on March 8 did not violate clearly established

constitutional law.

disorder upon being admitted to Eufaula is supported only by the

fact that David had made prior suicide attempts and threats and

that a family member had committed suicide. Dr. Halpern's

affidavit does not set forth any support for his conclusory

statement that these factors would have led to the diagnosis he

contends is the correct one. Although Dr. Halpern states that Dr.

Maughon made "no attempt to properly evaluate and treat David," he

does not describe what sort of evaluation should have been

conducted. Nor does Dr. Halpern indicate whether or how the

prescribed treatment should have been different upon David's

admittance had he been correctly diagnosed. Second, there are no

indications that Dr. Halpern took into account when David's threats

were made.39 Nor did Dr. Halpern note whether such reports of

attempts and threats might have been, absent evidence of injury or

near injury, manipulative or attention-getting behavior on David's

part as both Jurls' and Dr. Jenkins' notes in David's record seem

to imply. 40 Finally, Dr. Halpern's affidavit makes no effort to

evaluate the degree to which Dr. Maughon had allegedly departed

from accepted medical standards.

39

The social history conducted by Jurls simply stated that

David had had suicidal thoughts and gestures within the two years

before being admitted to Eufaula. His Baldwin County report

conducted in August of 1991 did indicate that at least one threat

occurred in March 1991.

40

For example, Jurls wrote on March 2 that David continued

to enjoy the "shock value" of talking about suicide. The record

seems to indicate that Jurls questioned whether David had ever

actually attempted suicide. She noted in the January 27, 1992,

suicide assessment form that David's family had no knowledge of

David's past attempts and that David's self-reported gestures

could not be confirmed. In the same report she described his

suicidal thoughts as without genuine intent.

Dr. Maughon's alleged misdiagnosis is less egregious than

that of the psychiatrist in Greason and Waldrop. That psychiatrist

knew that mental health professionals outside the prison system had

previously diagnosed the inmates as suffering from serious

psychiatric conditions and that those outside professionals had

recommended that the inmates remain on previously prescribed

psychiatric medications. Here the only previous diagnosis

available to Dr. Maughon was the psychological evaluation from

Baldwin County Mental Health Center, and it did not set forth any

diagnosis but recommended only that David return to outpatient

counseling and be placed in a residential program if his condition

deteriorated. The evidence indicates that as of January 1992, when

the initial intake was done, no other doctor or psychologist had

suggested that David be evaluated for anti-psychotic medication.41

Nor does Dr. Maughon's behavior appear to be more egregious than

that of the physician in Rogers v. Evans, 792 F.2d 1052 (11th

Cir.1986), where the doctor was potentially liable for having

withdrawn medical care in response to the justified criticisms of

the inmate's family and where her use of two different medications

were called into question.

After the initial assessment completed on January 23, Dr.

Maughon was contacted only once more, on Saturday, March 21. At

that time, David had been placed in seclusion after destroying

property and threatening to cut himself with a piece of glass. He

was beating his head on the wall and cursing loudly. Dr. Maughon

41

Dr. Nixon, not a psychiatrist, referred David for

evaluation almost two months after Dr. Maughon's initial

evaluation of David.

was notified by telephone, and prescribed a tranquilizer over the

telephone. In evaluating Dr. Maughon's actions under the

circumstances the following factors are relevant. There is no

evidence that Dr. Maughon reviewed David's record when he was

called on the telephone on Saturday, March 21. Thus, we cannot

assume that he had the more extensive knowledge which Dr. Jenkins

had. Moreover, the incident on March 21 about which Dr. Maughon

was consulted was clearly not as serious as the one about which Dr.

Jenkins was consulted.42 Finally, Dr. Maughon, like Dr. Jenkins,

could rely on the Eufaula staff to monitor David's progress.

We readily conclude that plaintiffs have failed to show that

Dr. Maughon's actions were such a departure from professional

judgment that a reasonable professional in his shoes would have

known that his actions violated David's constitutional rights.

Indeed, the case against Dr. Maughon's is a fortiori less

compelling than the case against Dr. Jenkins because Dr. Maughon is

charged with less knowledge and because the particular incident

which triggered his consultation was less serious than that which

triggered Dr. Jenkins' evaluation.

D. Bradley Mazick, Ph.D.

Dr. Mazick, a psychologist, was clinical director of Eufaula

during David's time there. The appellees allege that Dr. Mazick

failed to exercise professional judgment both as a psychologist

involved with David's care and as clinical director of the facility

42

The notes about this incident in David's record indicate

only that "Dr. Maughon was notified about this resident beating

and banging head on walls and cursing and totally out of

control—He said give Vistaril 50 mg in stat...."

by failing to review David's record, failing to supervise Jurls,

failing to reform Eufaula's seclusion and time out policies, and

failing to take measures to prevent the alleged abuse at Eufaula.

We will first address whether Dr. Mazick's personal treatment of

David violated David's constitutional rights and then address

whether Dr. Mazick's alleged failure to discharge his

administrative/supervisory duties amounted to constitutional

violations.

1. Dr. Mazick's Treatment of David

The appellees generally contended that Dr. Mazick departed

from the most basic professional judgment in his treatment of

David. They apparently base this allegation on his alleged failure

as a general matter to supervise and to ensure for David the

necessary and essential psychiatric treatment, and his failure to

see David until two months after David was assessed and recognized

as having made suicidal threats and gestures.

Dr. Mazick had only two personal contacts with David. The

first was shortly after David injured his left wrist. Dr. Mazick

secluded him sometime after that incident and asked him about his

arm at that point. Then Dr. Mazick saw David briefly on March 24

when he had an informal conversation with him. 43 Plaintiffs have

failed to adduce evidence that Dr. Mazick knew that David had

attempted to hang himself on March 22. The record indicates that

he had not seen the March 22 entry nor did he know that David had

43

In his deposition, Dr. Mazick testified that he saw David

in the hallway and that David requested to speak with him.

attempted to injure himself on March 21.44 The plaintiffs presented

no further evidence from which a fact finder could infer that Dr.

Mazick knew of the March 22 hanging attempt. Although the expert

affidavit asserts that Dr. Mazick's behavior was not based on

professional judgment because he failed to review the record, it is

not clear that Dr. Mazick's failure to review the record in this

situation rises to the level of unconstitutionality. First, the

record does not indicate that Dr. Mazick was involved in the

decision to take David off close observation.45 Second, plaintiffs

have not adduced evidence to suggest that Dr. Mazick could not

delegate the responsibility to Jurls and McBride to review

residents' records and to bring relevant information to his

attention. Finally, the affidavit of plaintiffs' expert, upon

which plaintiffs apparently rely to show deficient professional

supervision, is wholly conclusory and is of little assistance.

We readily conclude that plaintiffs have failed to show that

a reasonable professional in Dr. Mazick's shoes would have known

that his actions violated David's constitutional rights.

2. Dr. Mazick's supervisory duties

The plaintiffs allege that Dr. Mazick's failure to discharge

44

Mazick noted that David was due to be off close

observation status because he had been free of self-injurious

behavior for several days. However, had he looked at David's

record, he would have realized that there were two self-injurious

incidents over the weekend. Apparently, he was inferring that

such was the case from David's comments and from Jurls' decision

to take David off close observation.

45

He did indicate after the fact that he told David that he

saw no reason David should not be taken off close observation,

but the record does not show nor do the plaintiffs contend that

he took part in that decision.

his supervisory duties violated clearly established constitutional

law and bore a causal relationship to David's injury. It is true

that in some situations, supervisors may be held liable for failing

adequately to train and supervise their subordinates.

[Supervisory] liability under section 1983 "must be based on

something more than a theory of respondeat superior.

Supervisory liability occurs either when the supervisor

personally participates in the alleged constitutional

violation or when there is a causal connection between actions

of the supervising official and the alleged constitutional

deprivation. The causal connection can be established when a

history of widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he

fails to do so."

Cross v. Alabama Dep't. of Mental Health & Mental Retardation, 49

F.3d 1490, 1508 (11th Cir.1995) (quoting Brown v. Crawford, 906

F.2d 667, 671 (11th Cir.1990)); accord Dean v. Barber, 951 F.2d

1210, 1215 (11th Cir.1992) ("[A] supervisor may be held liable

under section 1983 if the supervisor had personal involvement in

the constitutional deprivation or if a sufficient causal connection

exists between the supervisor's conduct and the constitutional

violation."). A supervisor sued in individual capacity is entitled

to qualified immunity unless a reasonable supervisor would have

known that his or her actions were unlawful in light of

clearly-established law and the information possessed. Greason,

891 F.2d at 836-37.

The plaintiffs allege that Dr. Mazick failed to fulfill his

supervisory responsibilities, including his duty to supervise

Jurls, his duty to review David's clinical course on a regular

basis given the fact that he "had knowledge of David's suicidal

condition" and to monitor the amount of treatment David was

getting. The expert affidavit of Dr. Hamilton asserts that Dr.

Mazick "should have" reviewed David's clinical course on a regular

basis and monitored Jurls. However, the expert's affidavit

provides no support for his conclusory opinion. Neither the

expert's affidavit nor any other evidence adduced by plaintiffs

supports their assumption that it was improper for Dr. Mazick to

rely on Jurls to bring relevant matters to his attention.

Significantly, Dr. Hamilton does not address the issue of the

degree to which Dr. Mazick's actions allegedly departed from

accepted professional standards, and thus does not help plaintiffs

discharge their heavy burden in that regard. Dr. Hamilton did

suggest that in Alabama only psychiatrists and psychologists could

diagnose mental illness. However, neither plaintiffs nor their

expert indicate why, after a psychiatrist's diagnosis was made, Dr.

Mazick could not rely upon Jurls to bring relevant matters to his

attention.

None of our case law indicates that a supervisor's failure to

monitor an individual patient's progress amounts to deliberate

indifference or failure to exercise professional judgment. Thus,

even if Dr. Mazick's actions departed in some degree from accepted

standards, plaintiffs have failed to carry their burden of

establishing such an egregious departure that a reasonable

professional in Dr. Mazick's shoes would have known that he

violated David's constitutional rights. Dr. Mazick's actions are

not as egregious as the actions of Drs. Oliver and Duncan, the

medical administrators who were denied qualified immunity in

Greason. Both doctors were aware of the severe inadequacies of the

institution, including the clearly inadequate number of

professional staff. Both knew that the particular psychiatrist

assigned to the inmate had an excessive burden. Both were aware

that the psychiatrist had discontinued Greason's medication. Both

were aware of the previous incident, i.e., the Waldrop incident, in

which an inmate had plucked out one of his eyes, severely injured

the other eye, and cut his scrotum losing both testicles after the

same psychiatrist first discontinued that inmate's psychiatric

medication and failed to reinstate one of the medications. See

Waldrop, 871 F.2d at 1032. Thus, Greason does not indicate that

Dr. Mazick's conduct violated the Constitution.

Nor are Dr. Mazick's alleged supervisory failures comparable

to those in George v. McIntosh-Wilson, 582 So.2d 1058 (Ala.1991).

In that case a severely mentally retarded patient died when he was

left unattended and choked on a rubber glove left within his reach.

In that case the court concluded that a fact finder could infer

that the administrator failed in her duty to disseminate

information to the non-professional direct-care employee regarding

the patient's dangerous mouthing habit.

The appellees also assert that Dr. Mazick was responsible for

the constitutional violations inherent in Eufaula's seclusion

practices, specifically the "inhuman conditions in building 112" as

well as the manner in which time out and other forms of

restrictions were used. The appellees allege that these practices

violated the law set forth in Romeo. Plaintiffs' claim fails both

factually and legally.

With respect to Building 112, appellees cite no evidence that

specifically sets forth that the conditions were inhumane.

Although the appellees allege that seclusion in Building 112 had no

therapeutic effect, none of the documents they cite support that

conclusion. Rather the documents cited by the appellees merely

indicate that reforms were necessary with respect to Eufaula's

seclusion and restraint system. Nor have plaintiffs presented

expert testimony indicating that the restraints used in Building

112 constituted a failure to exercise professional judgment.

Plaintiffs' argument with respect to time-out and other forms of

restrictions fails for the same reasons.

Plaintiffs' claim also fails legally. A conclusory allegation

that the use of Building 112's seclusion facility violated Romeo is

insufficient, absent precedent that more clearly sets forth what

form of restraint is violative of Romeo. Although Romeo stated

that the mentally retarded patient in a state institution did have

a liberty interest in freedom from bodily restraint, id., 457 U.S.

at 316, 102 S.Ct. at 2458, the Court went on to note that that

liberty interest was not absolute. Id. 457 U.S. at 319, 102 S.Ct.

at 2460. Rather the " "liberty interest of the individual' " had

to be balanced with " "the demands of organized society.' " Id.

457 U.S. at 319, 102 S.Ct. at 2460. Citing Bell v. Wolfish, 441

U.S. 520, 540, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979), the

Romeo court indicated that while pre-trial detainees, for instance,

could not be punished, restraint of pre-trial detainees "reasonably

related to legitimate government objectives and not tantamount to

punishment" was upheld. Romeo, 457 U.S. at 319, 102 S.Ct. at 2460.

The Court further indicated that balancing would be left to the

professional judgment of the qualified staff members and that

courts need only make certain that professional judgment was

exercised. Finally, the Court in Romeo never indicated that the

restraints used in that case were violative of the patient's due

process rights.46 The appellees have not cited other cases which

would indicate that the sort of restraint used here would violate

David's right to be free from bodily restraint. Plaintiffs have

relied on merely abstract propositions, which the court in Lassiter

v. Alabama A & M University, Board of Trustees, 28 F.3d 1146, 1150

(11th Cir.1994) (en banc), held was clearly insufficient.

Appellees also allege Dr. Mazick was responsible for not

taking remedial actions to halt the beatings and abuse at Eufaula.

Eleventh Circuit cases have held that administrators' failure to

abate violence and abuse may constitute deliberate indifference.

See, e.g., Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir.1995)

(where inmate on inmate violence was regular during overcrowding

and where it was severe enough to require medical attention and

even hospitalization on occasion); LaMarca v. Turner, 995 F.2d

1526, 1535 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

1189, 127 L.Ed.2d 539 (1994) (where in a prison context unnecessary

pain and suffering standard met by "unjustified constant and

unreasonable exposure to violence"). However, the evidence

presented by the plaintiffs does not indicate that Dr. Mazick was

apprised of an extent of violence and abuse which would have put

him on notice that his failure to act in the face of such abuse and

violence would rise to the level of a constitutional violation.

46

In Romeo, the patient was physically restrained during

portions of each day through the use of soft restraints which

apparently bound the arms only.

With respect to the allegations that abuse was rampant at

Eufaula, the appellees have presented as evidence the affidavits of

John Fowler and Billy Kirby as well as the testimony of Allen

Forte. The affidavit of Kirby did allege that Dr. Mazick knew

about the beatings. Specifically, Kirby stated that he complained

to Dr. Mazick that "all of [the residents] were being hit by staff

members including ... David ... and lots of others." However, we

do not believe that this limited information would support a

finding that violence and abuse were so rampant that failure to

react would constitute a clearly-established constitutional

violation. Plaintiffs also presented as evidence of abuse and

violence the FY 1991-92 Advocacy Monitoring Report. That report,

for the reasons discussed supra at Part I, did not provide

sufficient evidence to indicate that physical abuse was such that

a jury could infer that Dr. Mazick knew that the abuse and violence

were rampant. The report only concluded that incident

investigations were inadequate; it only detailed a few allegations

and none had been substantiated.47 Thus, we do not believe that the

case law clearly established that a reasonable professional

possessing the knowledge that Dr. Mazick had would have known that

his actions violated David's constitutional rights.

E. Anthony Dykes

47

A jury might infer that Dr. Mazick had learned of the

plight of the resident discussed in Allen Forte's affidavit.

Allen Forte testified that one resident had to be taken to the

hospital twice to be treated for injuries incurred when other

residents sexually abused him. However, even assuming Dr. Mazick

knew of these two incidents also, the totality of what he knew

does not create an inference that the episodes of abuse at

Eufaula rose to the level discussed in the text.

Anthony Dykes was the director of the Eufaula Adolescent

Center. Dykes was not trained in psychology, psychiatry, or social

work, thus Dykes was not a mental health professional.

Nevertheless, as an administrator or supervisor, he would be liable

if he participated in the constitutional violation or if a causal

connection existed between his actions and the constitutional

deprivation. Cross v. Alabama Dep't. of Mental Health & Mental

Retardation, 49 F.3d 1490 (11th Cir.1995).

First, appellees contend that Dykes failed to make sure David

was free from unnecessary bodily restraints, i.e., that he allowed

the practice of restraining patients for punitive rather than

therapeutic purposes, and that he allowed the use of building 112

for seclusion. For the reasons discussed above with respect to Dr.

Mazick, this allegation must fail.

Second, the appellees allege that Dykes failed to make sure

that David did not experience abuse at Eufaula. Although, Kirby's

affidavit asserts that he told Dykes of the beatings children

received at the hands of staff or other residents, this allegation

must fail for the reasons set forth supra in our discussion of this

allegation with respect to Dr. Mazick.

Third, the appellees contend that Dykes violated David's

constitutional rights by failing to make sure conditions at Eufaula

were safe, among other things, by failing to remove the bars from

the dormitory closets. We first note that Dykes could reasonably

rely on subordinates to ensure that a child who was at risk of

doing harm to himself would be placed on close or continuous

observation or that other precautionary measures might be taken.

More importantly, we find no case law indicating that Dykes

violated clearly established constitutional rights.48 This case is

distinguishable from Greason; there the non-professional

administrator was held liable because he took no corrective action,

notwithstanding having been specifically put on notice of

49

particular defects or inadequacies in his facility. Unlike the

situation in Greason, no evidence of earlier incidents of injury

involving the alleged inadequacy, i.e., the bars in the dormitory

closets, was presented.

Fourth, the appellees also contend that Dykes failed to make

certain that David had adequate medical care, specifically adequate

psychiatric care, or adequate individual treatment as would give

him the realistic opportunity to be cured or to improve his medical

condition. However, there is no indication that Dykes knew the

details of David's history of suicidal threats or gestures or that

Dykes knew about the specific behaviors David exhibited while at

Eufaula. Moreover, appellees' complaints about Dykes in this

regard rely on abstractions, which we readily conclude are

insufficient. See Lassiter, 28 F.3d at 1150.

48

In Belcher v. City of Foley, 30 F.3d 1390 (11th Cir.1994),

this circuit held that it was not clearly established that "a

reasonable jail official, who knew that an inmate could hang

himself by tying some material to the bars of a jail-cell door

and yet who failed to prevent that possibility, was acting with

deliberate indifference to an inmate's taking of his life." Id.

at 1399.

49

In that case, Kemp, the warden of the facility where an

inmate committed suicide, knew of particular inadequacies in his

facility but did nothing to correct them and knew a similar

incident had occurred previously but did nothing to investigate

that previous incident or prevent it from happening again.

Greason, 891 F.2d at 839-40.

Fifth, the appellees argue that Dykes took no steps to insure

that Joint Commission on Accreditation of Health Organizations

("JCAHO"), accreditation was attained as required under the Wyatt

Consent Decree as amended and approved in Wyatt v. Wallis, 1986 WL

69194, *6 (M.D.Ala.1986). We need not address whether a consent

decree can in other circumstances clearly establish the

constitutional law,50 because we hold in this case that neither the

Consent Decree nor any other precedent clearly established a

constitutional right to JCAHO accreditation. As one of many

remedial measures, the Wyatt Consent Decree required the state

officials "to make all reasonable efforts to achieve full

accreditation of Alabama's mental health facilities by the Joint

Commission on the Accreditation of Hospitals...." Id. at *6. That

mandate, however, does not mean that lack of accreditation is a per

se constitutional violation. Such a proposition would be

anomalous, and surely is not clearly-established constitutional

law.

Finally, the appellees contend that Dykes and his

subordinates exhibited such a degree of indifference to the

policies and procedures that the staff could not have based their

decisions on professional judgments embodied in the policies. See

George v. McIntosh-Wilson, 582 So.2d 1058, 1063 (Ala.1991)

("[P]olicy-making administrators would be liable for the

50

See Clark v. Evans, 840 F.2d 876, 880 n. 4 (11th

Cir.1988); Williams v. Bennett, 689 F.2d 1370 (11th Cir.1982),

cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983);

Jackson v. Mississippi, 644 F.2d 1142 (5th Cir. Unit A May 1981).

See also Long v. Norris, 929 F.2d 1111 (6th Cir.), cert. denied

sub nom. Jones v. Long, 502 U.S. 863, 112 S.Ct. 187, 116 L.Ed.2d

148 (1991); Green v. McKaskle, 788 F.2d 1116 (5th Cir.1986).

constitutional deprivations caused by their subordinates if they

exhibited such a degree of indifference to compliance with their

policies as to demonstrate that they did not base their actual

administrative decisions or actions on the professional judgments

embodied in the policy.") However, neither the appellees' expert

affidavit nor other evidence in the record indicates which policies

were violated as a result of Dykes' failures. 51 Nor do appellees

identify the clearly established constitutional rights implicated

by such policies. We readily conclude that appellees have failed

to establish that these alleged deficiencies on the part of Dykes

violated David's clearly established constitutional rights.

Lassiter, 28 F.3d at 1150.

F. Emmett Poundstone

Emmett Poundstone was ADMHMR Associate Commissioner for

Mental Health. The Eufaula facility was within the scope of

Poundstone's responsibility. Poundstone was not a mental health

professional. The plaintiffs claim that Poundstone failed to make

sure that the Eufaula staff were trained in suicide assessment and

in recognizing suicidal tendencies. We readily conclude that this

claim has no merit. Where an institution is staffed with health

care professionals, including licensed psychologists, psychiatrists

and social workers, we know of no cases which indicate that in this

circuit the failure of a state-wide administrator to make

provisions for such training for the mental health care

51

Although it is alleged that Eufaula's policy was violated

when David was admitted in contravention of the policy against

admitting actively suicidal patients, it is not alleged that

Dykes took part in that decision or that he could be directly

implicated in that decision.

professionals constitutes a violation of clearly established

constitutional rights.52

As noted in the margin, the remaining claims by plaintiffs

against Poundstone fail for reasons already discussed.53

G. Royce King

Royce King was ADMHMR commissioner. He is not a mental

health professional. The appellees allege that King and his

subordinates exercised such a degree of indifference to compliance

52

In Greason, numerous failings combined to persuade the

court to deny qualified immunity to Dr. Duncan, who held the

state-wide position of Director of Mental Health for the Georgia

Department of Corrections. Dr. Duncan was aware of the previous

and very similar Waldrop incident, was aware that the same

psychiatrist primarily responsible for the Waldrop incident was

the only source of psychiatric care for Greason, was aware that

he could not adequately treat all of the inmates requiring mental

health care, was aware that the particular institution made no

provision at all for mental health treatment plans, and in

general was aware of the conditions at the institution that

constituted grossly inadequate mental health care. Nevertheless,

Dr. Duncan failed to take any remedial action. Amongst the

claims of Dr. Duncan's deficiencies was a claim superficially

similar to, but actually much different from the instant

claim—i.e., that Dr. Duncan knew that the institution had no

policies or procedures designed to help the nonprofessional

prison staff and guards recognize suicidal tendencies and prevent

suicide attempts. Not only was that alleged deficiency merely

one of a number of more serious deficiencies, the instant claim

against Poundstone is not that he knew that Eufaula's provisions

for suicide assessment were wholly inadequate, but rather that he

merely failed to ensure that there were policies requiring more

training. We readily conclude that the Greason precedent is

wholly inapposite.

53

The plaintiffs contend that Poundstone is not entitled to

summary judgment because (1) he failed to take measures to stop

the beating and abuse at Eufaula, (2) he failed to change the

allegedly unconstitutional seclusion and time-out policies, and

(3) he failed to ensure that Eufaula acquired JCAHO

accreditation. The first and second allegations fail for the

reasons set forth in Section IV.D., in our discussion of this

claim with respect to Bradley Mazick. The third claim fails for

the reasons set forth in Section IV.E., in our discussion of this

claim with respect to Anthony Dykes.

with the ADMHMR policies that they did not base their actual

administrative decisions on professional judgment. However, the

appellees do not indicate which particular policies King and his

subordinates ignored. Nor do appellees identify the

clearly-established constitutional rights implicated by such

policies. Thus, we readily conclude that appellees have failed to

demonstrate a violation of clearly established constitutional

rights. See Lassiter, 28 F.3d at 1150. Appellees do make a

specific contention about King's deficiencies with respect to the

Wyatt Consent Decree, i.e., the failure of Eufaula to acquire JCAHO

accreditation. However, this claim fails for the reasons stated in

Part IV.E., supra. The appellees also allege that King knew that

children were being secluded under improper conditions and failed

to take action. For the reasons set forth in Part IV.D., supra,

this argument also fails.

V. CONCLUSION

For the foregoing reasons, we affirm the district court's

denial of summary judgment as to Karen Jurls, and we reverse the

court's denial of summary judgment as to the remaining appellants.

AFFIRMED IN PART and REVERSED IN PART.

EDMONDSON, Circuit Judge, dissenting in part and concurring in

the result in part:

A great deal of today's opinion is right. I cannot concur,

however, in the decision on Karen Jurls.

In my judgment, when Ms. Jurls in 1992 acted or failed to act,

it was not already clearly established as a matter of law that the

rights, under the fourteenth amendment's due process clause, of

mental patients involuntarily civilly committed to state

institutions would always be the same as the rights, under the

eighth amendment, of convicts in prisons even if the circumstances

were otherwise similar. Therefore, I cannot agree that Ms. Jurls

(and every reasonable social worker in her place) would be expected

to know that Greason v. Kemp, 891 F.2d 829 (11th Cir.1990)—a prison

case decided on eighth amendment grounds—clearly established as a

matter of law the rules governing her conduct outside of a prison

and under the fourteenth amendment.

The difference between a prison and some other kind of

institution and the difference between the eighth amendment and the

fourteenth amendment's due process clause are enough, at least, to

cloud the question. To apply Greason outside of a prison is not to

follow Greason, but to extend it. I do not believe that nonlawyers

must foresee such extensions or forfeit their immunity. To me,

this practice flies in the face of the idea that qualified immunity

protects against personal liability unless the defendant's acts

violated clearly established pre-existing law.

I know that the Supreme Court in Romeo wrote among other

things that persons civilly committed are "entitled to more

considerate treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish." But those

words are not the holding of Romeo. They explain the Romeo

decision in part: they explain why the "deliberate indifference"

standard used for prisons was not adopted for mental institutions.

But Romeo does not hold that every act that violates the eighth

amendment rights of a prisoner will doubtlessly violate the due

process rights of those involuntarily civilly committed to state

institutions. In my view, this idea is not clearly established as

a matter of law now and was not so established in 1992.

I do not say that the Supreme Court's words that I have quoted

are totally without significance; they have some value as

predictors. But, I do say the words do not establish law, in

themselves. And, by the way, this Circuit has also never held that

the due process rights of mental patients always, at least, equal

the eighth amendment rights of prisoners. Therefore, today's

court's heavy reliance on Greason—an eighth amendment decision—as

the case that in 1992 had already clearly established rights

outside of the eighth amendment's prison context seems too shaky.

I cannot go along.

For me, Greason, in the light of the words I have quoted from

Romeo, does suggest that courts might ultimately decide that the

law requires mental health workers outside of prisons to follow or

to exceed the eighth amendment guidelines. But, in Lassiter, we

said for precedent to suggest something about the applicable law

was just not enough.

We said the "pre-existing law must dictate, that is, truly

compel (not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent

that what defendant is doing violates federal law in the

circumstances." Lassiter v. Alabama A & M University, Bd. of

Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc) (emphasis in

the original).

In 1992, Greason did not (and in my view, as a matter of law,

could not) truly dictate the essential conclusion for Karen Jurls

and those like her who were working outside of prisons. I cannot

hold this social worker to a clearer understanding of the

law—particularly of the precedential authority of Greason—than I

have.

I dissent from the result for Karen Jurls, but concur in the

result otherwise.