Dolihite v. Maughon

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-6343

D. C. Docket No. CV-92-H-1398-N

MICHAEL LEROY DOLIHITE, individually and as

father and next friend of David Michael

Dolihite; JOYCE MARY DOLIHITE, individually,

Plaintiffs-Appellees,

versus

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.

Appeals from the United States District Court

for the Middle District of Alabama

(January 23, 1996)

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

2

psychiatric services to Eufaula; Drs. Robert Maughon1 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. 2452 (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. at 2458-59. Discovery

was completed. The defendants all moved for summary judgment on

qualified immunity grounds. The district court denied their

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.

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

motions. Dolihite v. Videon, 847 F. Supp. 918 (M.D. Ala. 1994).

The defendants-appellants brought this interlocutory appeal. We

have jurisdiction.3 Mitchell v. Forsyth, 105 S.Ct. 2806, 2815-16

3

Neither party challenges our jurisdiction under the

recent Supreme Court opinion, Johnson v. Jones, 115 S.Ct. 2151

(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

(1985). Several "countervailing considerations" persuaded the

Court to decline extending the rule of immediate appealability to

include "evidence insufficiency" issues. Johnson, 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 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

4

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 (1987). This argument raises the core qualified immunity

issue and is, therefore, immediately appealable under Mitchell v.

Forsyth, 472 U.S. 511 (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, ___ F.3d ___,

___, 1995 WL 744033 (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, 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

5

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,

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 (1995) (also

6

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, 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 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, 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

7

(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

problematic behavior at home and at school.4 The court placed

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.

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.

8

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

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 death, and had some family history of

suicide.8 Appellees also contend that behavior described in

David's Baldwin County Mental Health Department evaluation could

5

The district court opinion indicates he was admitted on

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

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

be construed as psychotic.9 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

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

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."

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

10

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.

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

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.

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.

11

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

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.

12

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 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

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 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

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.

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

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).

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

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 pm 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 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

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.

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.

15

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:

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

observation, Dr. Mazick and David had a short discussion18 during

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).

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.

16

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 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

17

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

substance of more than a few of those complaints.20 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 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.

18

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, (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 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

19

professional judgment, practice, or standards as to demonstrate

that the person responsible actually did not base the decision on

such a judgment." 102 S.Ct. at 2454. 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.

20

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, 102 S.Ct. 2727,

2738 (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. 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.

21

Qualified immunity is intended to give officials the ability

to anticipate when their conduct may give rise to liability for

damages. Anderson v. Creighton, 107 S.Ct. 3034, 3042 (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 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.

107 S.Ct. at 3039 (citations omitted).

22

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. 102 S.Ct.

2452 (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. 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

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

23

An official violates a prisoner's Eighth Amendment rights when

the official is deliberately indifferent to the prisoner's

serious medical needs. Estelle v. Gamble, 97 S.Ct. 285 (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,

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

Romeo and requires no analogies.

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.

24

knowing what the appellant knew, would have realized that those

acts violated David's constitutional rights.

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 during his weekly group therapy session;24 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 2225 but

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.

25

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 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

26

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.

27

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.

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.

28

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 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

29

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

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

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.

30

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

31

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 state actors subject to liability under §

1983. See West v. Atkins, 108 S.Ct. 2250, 2259-60 (1988); Ancata

v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.

1985). Because they are individuals subject to liability under

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.

32

§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

a. Facts Relevant to Dr. 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.

33

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

31

She wrote: "MUST be evaluated by Psychiatrist for

antipsychotic medication ...."

34

cursory. Dr. Jenkins wrote that he had reviewed David's case

with David's nurse and therapist, that 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

35

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.

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.

36

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

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

37

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

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,

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.")

38

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

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

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.

39

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

40

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;"

41

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.

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.

42

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.

Similarly, the instant facts are not as egregious as those

presented in Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986).37

There the court concluded that deliberate indifference to medical

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.

43

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 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

44

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

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 constitutional rights, it follows that his alleged

failure to take action on March 8 did not violate clearly

45

from 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

established constitutional law.

46

that David should have been evaluated as clinically depressed

with bipolar 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

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.

47

affidavit makes no effort to evaluate the degree to which Dr.

Maughon had allegedly departed from accepted medical standards.

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.

41

Dr. Nixon, not a psychiatrist, referred David for

evaluation almost two months after Dr. Maughon's initial

evaluation of David.

48

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 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 agasint Dr. Jenkins because Dr. Maughon

is charged with less knowledge and because the particular

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 ...."

49

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 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

50

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

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

43

In his deposition, Dr. Mazick testified that he saw

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

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.

51

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

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

52

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

53

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.

54

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.

55

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

note that that liberty interest was not absolute. Id. at 2460.

Rather the "'liberty interest of the individual'" had to be

balanced with "'the demands of organized society.'" Id. at

2460. Citing Bell v. Wolfish, 99 S.Ct. 1861, 1874 (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, 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

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.

56

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,

114 S. Ct. 1189 (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.

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

57

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

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.

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.

58

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

59

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

particular defects or inadequacies in his facility.49 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

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.

60

abstractions, which we readily conclude are insufficient. See

Lassiter, 28 F.3d at 1150.

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

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 (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 (1991); Green v.

McKaskle, 788 F.2d 1116 (5th Cir. 1986).

61

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

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

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.

62

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 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

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

63

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 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

claim with respect to Anthony Dykes.

64

court's denial of summary judgment as to the remaining

appellants.

AFFIRMED IN PART and REVERSED IN PART.

65